The Case of Leo Frank
A FACTUAL REVIEW OF ONE OF THE MOST SENSATIONAL
MURDER CASES IN COURT ANNALS
By BURTON RASCOE
On a Sunday morning toward the middle of Spring 30-odd years
ago, the body of a 13-year-old girl was found battered and strangled
in the basement of a pencil factory, where she had been employed, in
the heart of" the business district of Atlanta Georgia.
Various suspects were taken into custody, grilled by the police and
released. Three of these and a young girl employed at the factory gave
information which led to the arrest and indictment of the superintendent
of the factory. He was tried, found guilty and sentenced to hang for
In a series of appeals, which consumed nearly two years, the case
was carried all the way to the Supreme Court of the United States. There
applications for a new trial were heard and denied, first by two in-
dividual justices and finally by the full bench. The condemned man
then was sentenced, for the fourth time, to die on the gallows.
On the eve of the scheduled execution, Governor John Slaton of
Georgia commuted the prisoner's sentence to imprisonment for life.
Meanwhile, the case had become a cause celebre, one of the most
sensational ones in juridical annals. What had started out as almost
a routine murder trial, involving alleged rape, exciting little attention
except locally and almost none outside the state, became a national,
and almost an international, issue.
Emotions were fanned to the highest pitch by newspapers and
magazines, by exhortations from the pulpit and in public meetings, and
by unrestrained demagoguery on the part of private individuate and
All the ancient animosities between the North and South, which had
lain dormant since the Civil War, were aroused and inflamed to white
heat in an orgy of name-calling, charges, counter-charges and recrimina-
tions, nearly all of it irrelevent to the real issue. People who had only
the. vaguest notion of the facts in the case indulged' in dogmatic and
violent opinions about it, according to their environment, personal
prejudices and sectional bias.
The nation-wide emotional debauch ended in a grim and sickening
horror. On a hot night in August, two years to a day after the trial
had ended, five automobiles filled with armed men, inflamed by liquor
and debased with sadistic passion, bore down upon the state prison farm.
There the mob disarmed the guards, broke into the dormitory, kidnap-
ed the prisoner, drove 150 miles to the graveyard in which the body of
the little pencil factory worker lay buried, hanged their victim to a tree
beside the grave and indulged in a bestial orgy of mutilating the body.
Thus, in a brutal and horrifying travesty of justice, perhaps an in-
nocent man died.
Perhaps he was guilty.
But even in the legal punishment for crime there should be no
perhaps. There should be a moral certainty of guilt, reached by careful
consideration of the facts. And whosoever participates in a lynching
is a fiendish murderer who is guilty of a far worse crime than that
which he seeks to avenge; for his is a crime against civilization as
well as against the individual, against justice as well as against the laws
which are designed to insure justice;
I said perhaps the man was guilty.
A jury of his peers; solemnly sworn to judge the evidence fairly and
impartially, obviously believed so.
They held that his guilt had been proved "beyond reasonable doubt."
It is important to understand what that legal phrase means. "Be-
yond reasonable doubt," does not mean beyond all possible doubt or
beyond any imaginable doubt. It means "proof to a moral certainty
as distinguished from an absolute certainty. (Vide, Marshall's Common
Legal Principles, Vol. H, p. 400.)
Five courts of appeal, including the highest tribunal in the land,
held that the defendant had received a fair and impartial trial.
That is not to say that these courts held that the condemned man
It was not in their province to decide on that. They were required
to decide only upon the question as to whether or not there had been
error, some flaw in correct trial procedure, which might tend to preju-
dice the jury.
In this case the defense alleged that certain incidents had occurred
in court during the trial which were prejudicial to the defendant and
of a nature to influence the jury.
All of the appellate courts, after reviewing the evidence on which
these allegations of trial error were based, ruled that there were no
grounds upon which to order a new trial.
From the trial judge tq the Chief Justice of the United States
Supreme Court, those who ruled not to upset the original verdict, as
long as no trial error had been committed, were acting on the highest
principles of justice. Two of the most sacred rights the individual
possesses are the right to a speedy trial by a jury of one's peers, when
accused of a criminal offense, and the right to a public trial. The latter
has been guaranteed by laws to prevent secret trials. The laws have been
modified by provisions whereby the public may be excluded from trials
where the conduct of spectators tends to obstruct justice or give either
the state or the defendant an unfair advantage.
The action of the courts of appeal in this case show how zealously
the guarantees of the jury system are guarded. If they weren't so
zealously guarded, an innocent man might be hauled into a secret court
on a trumped up charge, prosecuted with no means whereby to refute the
charges and summarily found guilty and executed. Or, if a jury should
bring in a verdict that is unsatisfactory to a judge prejudiced against the
defendant, he might reverse the verdict or keep on ordering new trials
by different juries until a verdict was reached which suited him.
The laws are designed to protect the individual. He who is accused
of a crime enters the court where his innocence is presumed. The bur-
den is upon his accusers, as representatives of the state, to prove that he
is guilty. The law is all in his favor from the start. And, m practice, it
would seem that most juries act upon Blackstone's principle, "Better
that 10 guilty escape than that one innocent suffer." Convictions in
cases of capital crime are rare except when proof of guilt is manifest
But jurors, like judges and lawyers and everybody else, are human
beings, often swayed by emotion in their most determined efforts to be
impersonal, reasonable and just, fallible in their deductions, deceived by
testimony, influenced in their judgment by psychological phenomena of
which they may not be aware.
The trial judge is there to minimize the possibilities of error in the
jury's judgment. It is not his function to impress upon the jurors his
private views of the defendant's guilt or innocence, but it is his duty
to protect the defendant against an unjust verdict and to instruct
the jury in the law as applied to the facts of the particular case so as to
lessen the possibility of an erroneous verdict. The trial judge, however,
has the authority to direct the jury to bring in a verdict for one side or
the other, if, in his opinion, the state of the evidence requires it.
In the case I am about to review, the trial judge was, I think,
estopped from directing a verdict and from ordering a retrial by the
misguided action of the counsel for defense. Before the judge had
charged the jury, counsel for defense requested the court to retire the
jury because he had an application he did not wish the jury to hear.
The request was compiled with. The chief counsel for the defense there-
upon made a motion for mistrial, citing five incidents, which he argued*
constituted trial error. If, instead, he had asked for a directed verdict
or a dismissal of the case on the ground that the state had produced in-
sufficient evidence for conviction, the case, I believe, would have been
retired and the defendant either exonerated or found guilty by an over-
whelming weight of evidence.
Thus, probably, one of the most baffling murder mysteries in Juri-
dical annals would have been solved. And the case would never haye
aroused the furore that it did.
I first became interested in this baffling case 33 years ago. While
it was still under appeal, I studied all the then available facts concern-
ing it for three months and then published an article entitled "Will The
State of Georgia Hang an Innocent Man?" My conclusion was that the
state might be in danger of committing a grave error. I was urgent in
my plea for a new trial. From the facts I was then able to gathelr it
did not seem to me that the defendant had been proved guilty. On the
contrary, it seemed to me that the evidence tended to indicate that
one of the chief witnesses for the state was guilty of the crime and
that the man he accused of it was innocent.
At the time, the official records of the voluminous testimony in
the case were not available. I had to depend upon newspaper reports of
the trial and upon isolated transcripts of the evidence taken down by
unofficial stenographers. I was also in possession of a detective agency's
report on the case; but this report I suspected at the time and later
discovered to be biased and unreliable.
I have since studied the great body of the record of the trial pro-
ceedings, with minute care and diligence. I still think that the de-
fendant's guilt was not established. But I am no longer convinced that
one of his chief accusers was guilty.
My opinion is that the murder mystery, on the evidence, is insolu-
I have, however, arrived at one perhaps startling conclusion about
the case. I have not reached this conclusion hastily. I have meditated
much upon it. I have read and re-read the official records from which
I first derived a peculiar feeling about the case. This feeling developed
into a solemn conclusion.
This conclusion is that the position of the chief prosecutor and of
the chief counsel for the defense should have been reversed. I think
the prosecutor was plagued throughout the trial with secret intima-
tions that the man he was called upon to prosecute might be innocent;
and that the chief counsel for the defense was plagued throughout the
trial with secret intimations that the man he was called upon to defend
might be guilty.
I believe this is the reason the case remains such a mystery. I
shall show that both the chief counsel for the defense and the prosecut-
ing attorney overlooked important considerations bearing upon the case.
I believe that both seized upon untenable hypotheses which happened to
coincide and that if these hypotheses had been discarded in favor of
others the facts in the case would have been much clearer. I shall show
that the prosecutor, consciously or unconsciously, offered the defense
counsel gambits, time and time again, which would have demolished the
state's contention, if the defense counsel had taken advantage of them;
and that the defense counsel, consciously or unconsciously, ignored these
Finally, I think that counsel for defense, at the conclusion of the
hearing, should have made an application for a directed verdict, on the
ground that the evidence was not conclusive. This, if granted, would
have meant re-trial. Inasmuch as the trial judge later said that he
was of the opinion that the state had not presented sufficient proof
of guilt, he undoubtedly would have honored a motion for a directed
But defense counsel's motion did not contend that the state's evi-
dence was inadequate, it was an implied criticism of the manner in
which the trial judge had conducted the case. The tirlal judge, naiturally
and with reason, disagreed with that contention and left the verdict
in the hands of the jury, after charging it in a little masterpiece of im-
Once the case was out of the hands of the trial judge, this par-
ticular judge did not hold that his private opinion should outweigh
the verdict of the jury. If the force of his opinion about the merits of
the state's case had been strong enough, he could have set aside the
verdict and granted a new trial. But, apparently, the force of his
private opinion was not strong enough for that and needed the -argument
of the defense to support it. This, defense counsel did not offer; in-
stead he accused the judge of trial error.
Defense counsel was not able to prove its contention of trial error
even to the court of last resort. Hence the trial testimony was not re-
viewed by any appellate court, except the Georgia Supreme Court,
which had before it not the whole body of the testimony but only a
digest of it. The trial jury had had the first and final say on the
question of the guilt or innocence of the defendant. A clement governor
I give you the case of The People of the State of Georgia versus
Leo M. Frank, defendant, charged with murder in the first degree.
THE CASE OF LEO FRANK
1. LEO M. FRANK'S BACKGROUND
Saturday, April 26, 1913, was Confederate Memorial Day in Atlanta,
Georgia. North Carolina and South Carolina pay their respects on May
10 to those who died for the Confederacy; seven other Southern states
honor them on Jefferson Davis' birthday which is June 3rd.; but Florida
Mississippi and Georgia hold solemn holiday on April 26. Banks and most
business offices are closed; workers, except in the essential enterprises
usually have the day off, in which to view the parade or participate in
it, lay wreaths on the graves of departed relatives and listen to oratory.
On that particular day in Atlanta it was warm and clear.
Early in the week notices had been posted at the factory of the •
National Pencil Company at 37 South Forsyth Street that the usual
work "would be suspended on Memorial Day and that the employees would
be paid off after 6 o'clock on Friday. But notice was also given that
those who did not call for their pay envelopes on Friday could get them at
the office of the superintendent at any time between 9 and 1 on Saturday.
The superintendent of the factory was Leo M. Frank. He was 29
years old, frail, about 5 feet 6 inches in height, weighing less than 120
pounds, bespectacled, serious-minded and reserved. He was born in
Cuero, Texas, on April 17, 1884, the son of Rudolph and Rhea Frank;
but his parents had moved to Brooklyn when Leo was three months
old. There the boy grew up and was graduated from the public schools
and from Pratt Institute. He then entered the school of engineering at
Cornell University, from which he was graduated in 1906. After his
graduation he worked for a while as an engineer for the B. F. Sturtevant
Company of Hyde Park, Mass.
In 1907, a delegation of Atlanta businessmen came to New York
seeking to interest Northern capital in the advantages of Atlanta for
the location of manufacturing concerns. Among these advantages were
cited the low wage scale obtaining in the South, the plentitude of
women and children who were willing to work for small pay, the low
tax rate of Atlanta, the low cost of land for building sites, the low costs
for materials and construction, and the facilities of Atlanta for the dis-
tribution of products in an undeveloped consumer area.
Among the numerous possibilities which the Atlanta delegation sug-
gested was that a factory supplying cheap pencils for school-children
almost certainly would be highly profitable because the pencils sold in
the South were manufactured in the North, where costs were high and
most of the materials had to be imported. Cedar for pencils was abun-
dant and cheap in Georgia.
Frank's father was an invalid as a result of a railway accident, in
compensation for which he had received about $35,000. Of this amount,
his parents had about $20,000 out at interest, which brought them an
income of about $1,500 a year. Frank had a maternal uncle, Adolf, a
man of some wealth, who believed that a pencil factory in Atlanta would
be a good investment, and so organized a company toward that end,
with himself as president and chief owner and Frank and his mother
small stockholders. In 1908 Leo went to Europe for six months to study
the pencil manufacturing business and, upon his return, the National
Pencil Company began operations in Atlanta. Frank was draughtsman
and engineer. The business prospered; Frank was promoted to a di-
rectorship, a vice-presidency, and the superintendency. His salary was
$37.50 a week.
Normally, the National Pencil Company, including its subsidiary,
the Georgia Cedar Company, employed about 150 persons. The main
plant was a four story and basement building of fire-proof brick design,
gas-lighted but electrically serviced for the machinery and for elevator.
In April, 1913, the company was suffering from a general as well as a
seasonal depression and a great number of employees had been laid off.
Besides that, there had been a shortage in the supply of tin for the metal "
caps which held the pencil erasers and for several weeks the girls em-
ployed at the machines which affixed these metal caps had worked only
Frank had married an Atlanta girl, Lucile Selig, during his first
year with the National Pencil Company. They had no children. They
lived at the home of Mrs. Frank's parents at 68 East Orange Street. The
Selig residence was a two story frame building of seven rooms. They
had one servant, a married Negro woman, Mineola McKnight, who did
not "sleep in" but lived in her own home, coming to work at 7 o'clock
in the morning and leaving about 8 at night. She did the cooking and
general housework, for which she was paid $3.50 a week. Her husband,
Arthur McKnight, sometimes did odd jobs around the place, like mowing
the lawn and cleaning up the backyard.
During his six years' residence in Atlanta, Frank had become presi-
dent of the local chapter of a religious society, but the circle of his
acquaintances was limited. He was well-liked within his own small
group, but he was not well-known outside it. On Saturday nights, friends
of the family often came to the Selig home to play pinocle, but Frank
himself rarely joined in the games, preferring to read the popular
magazines instead. The Franks did almost no entertaining and Frank's
chief recreation seemed to be that of watching baseball games. He
attended the opera, during its brief season in Atlanta, but apparently
with reluctance and without enjoyment.
On Saturday morning, April 26, 1913, Frank set out for his office at
the National Pencil Company at 8 o'clock, arriving there at about 8:30.
He returned home for lunch, went back to the office in the afternoon
and returned for dinner about 6:20 p.m. He went to bed at about 10
Meanwhile, Mary Phagan, one of his employees, had left her home
at 11:30 on that same Saturday morning to go to the factory to draw
her week's pay.
Mary was 13 years and nine months old, plump, dimpled-cheeked,
blue-eyed, golden-haired, mature for her age and unusually pretty,
fresh and attractive. She had a pronounced knack for making the best
appearance with little expenditure for clothes. She had often taken part
in plays given at church socials and had been voted the most beautiful
girl in her Sunday school.
Mary's father was dead. Her mother had remarried. Her step-
father's name was J. W. Coleman. She lived with her mother, step-
father and four other children in a cheap but neat house in Bellwood,
then a suburb of Atlanta, which has since been incorporated as a part
of the city. It was a poor but respectable neighborhood.
Mary had been put to work early, so she had received only a pri-
mary school education, and not even a consistent one because the family
had moved around quite a bit. She was, in a way, typical of thje child
workers in the mills and factories of the South of the time— young and
sturdy girls drawn from poverty-stricken farms and city slums to toil
at machines for miserable wages in plants, largely operated by Northern
capital which had been attracted by the low wage scale prevailing in
Mary earned 5c an hour as a machine worker and ordinarily worked
12 hours a day, six days a week, making $3.60 for a full week's work. For
the week ending April 26, 1913, she had worked only two full days be-
cause the supply of metal for her machine — which affixed metal caps
for erasers to the pencils — had run out. Therefore she had onjy $1.20
coming to her.
As she set out that morning she wore a lavender dress trimmed with
lace, clean underthings, stockings, high-heel slippers, a blue hat with a
purple ribbon dangling from it, and she carried a parasol and. a small
She got on the street car at the corner of Marietta and Lindsay
streets and was greeted by motorman W. W. Mathews and conductor
W. T. Hollis. She got off at 12:10 p.m. at Broad and Hunter streets,
within a block and a half's walk of the factory.
She reached the factory at approximately 12:12 p.m. where she called
for her pay envelope in Frank's office on the second floor of the factory.
What happened to Mary Phagan within the next 13 minutes?
2. THE MURDER OF MARY PHAGAN
At 3:25 the next morning, Sunday, April 27, 1913, the telephone rang
at central police headquarters in Atlanta. Desk Sergeant L. S. Dobbs
took the call. The message at the other end of the wire was somewhat
confused and incoherent; it was the voice of a badly frightened man.
But Sergeant Dobbs was able to get these facts down:
The caller was Newt Lee, a Negro night watchman at the National
Pencil Company's factory at 37 South Forsyth Street, a few blocks
away. While going to the toilet in the basement, Lee said, he had
stumbled over the dead body of a "colored woman." (In the dim light
and because the face of the corpse was covered with soot and dirt, Lee
had mistaken the body to be that of a Negro woman.)
Sergeant Dobbs reported the call to Captain J. N. Starnes and went
with Patrolman W. F. Anderson to the Forsyth Street address. They were
met at the door by Lee, who led them down the iron stairway to the
basement. The first thing the officers noticed was that the cellar was
lighted by a single gas jet, turned down low. Dobbs asked Lee why this
was. Lee replied that when he had quit work the previous morning he
had left the light burning bright but it had been turned down low when
he entered the basement only a few minutse prior to his call to the police
station; that he hadn't touched the jet; and that was why he had
stumbled over the body — he hadn't seen it in the dark.
The police turned up the light. Dobbs took out pad and pencil and
reported thus: He found the body of the girl face downward in front of
the furnace. At first h > could not tell whether she was white or black,
because there was a deep gash in the back of her head which had matted
her golden hair with blood and because her face and hands were covered
with dirt and soot and her face was swollen black. When he pulled up her
dress to examine her body he saw the flesh was white. There was a cord
around her neck, deeply imbedded in the flesh. There was also a piece
of white cloth, torn from her underskirt, tied around her neck. There
was a bruise above the right eye but the skin there had not been broken.
The girl's body was stiff and cold.
One shoe was off; it was found 130 feet away. On a trash pile
in one corner was a blue hat later identified as belonging to the girl. A
ribbon lay near the hat. To this inventory of the girl's effects, Pa-
trolman Lassiter, who arrived some time later, added the parasol,
which he had found at the bottom of the elevator shaft; it was furled
and in good order. A thorough search failed to bring the girl's mesh
bag to light.
In one corner of the basement, among some other trash there were
several bundles of used order pads, with carbon impressions, bearing
the printed date, 1908. One of these pads was found near the body.
Sergeant Dobbs further reported that, covered with some sawdust be-
neath the girl's head, he found two notes scrawled in pencil, one on
white paper and the -other on yellow (or brownish) paper on which
there were faint carbon impressions of itemized billings. These recently
inscribed notes read:
"Mam that negro hire doun here did this i went to make water
and he puched me doun that hole a long tall negro black that hoo
it wase long sleam tall negro I wright while."
"he said he would (two words here seem to have been erased before
the notes were entered into the record and three other words are not
clearly distinguishable but look like 'laid down and') play like nigt
witch did it but that long tall black negro did it buy his slef ."
When Sergeant Dobbs completed his note-taking, he phoned a
nearby mortician, W. H. Gheesling and the body was removed to his
undertaking establishment where it was presently identified by someone
unnamed as that of Mary Phagan. At about 5:30 Captain J. N. Starnes
arrived with Patrolman W. W. Rogers and John R. Black. He ordered
Rogers, Black and Anderson to make a thorough search of the building.
Meanwhile he questioned the night watchman who had found the body.
The Negro said he had been trying to reach Mr. Frank on the phone
but had got no answer. Starnes phoned at intervals himself. At last,
at about 7 o'clock, Frank answered the phone.
Frank was notified that he must come to the factory immediately.
Frank replied that he hadn't had his breakfast yet and wanted to know
if the nightwatchman was there. Starnes said he was; and then Frank
asked if there had been a fire. Starnes said no. There were two different
versions as to Starnes* next words. Frank said Starnes added, "there has
been a tragedy." Starnes said he was careful not to disclose to Frank,
over the phone, the reason he was wanted, and that he terminated the
conversation by saying he was sending a patrol car up to Fraiik's house
for him at once.
When Patrolmen Rogers and Black rang the doorbell at Frank's
home, Mrs. Frank, attired in dressing gown and slippers, opened the door.
Frank, who was only partially dressed, then came forward from the ad-
joining dining room, which was separated from the living room by some
rope curtains through which he had been looking. Rogers told Frank he
had better go upstairs and get dressed. Frank did so and came down
in a few minutes. Meanwhile the policeman declined to answer any ques-
tions which Mrs. Frank asked. Nor did they say anything more to Frank
until he was in the car with them.
Then Rogers asked, "Do you know a little girl named Mary Phagan?"
Frank said, "No."
Rogers said, "She had been found dead in the basement of the pencil
Frank asked, "Did she work there?"
Rogers answered that she did.
Frank asked, "Did they find her pay envelope?"
Rogers and Black answered that question in the negative.
Thereupon Frank said, "I can't tell whether I know her or not
until I see the body. I know very few of the girls who work at the
pencil factory by name."
Then, instead of going directly to the pencil factory, the police car
went to the undertaking establishment to which the girl's body had been
The body was on a slab in the mortuary, the head inclined to one
side. Frank, visibly shaken, threw a quick glance at the body, shuddered
and walked out. He told the police he recognized the girl as one of the
employees he had paid off on the previous day. He said he could tell if
the girl's name was Mary Phagan by reference to the payroll records
in his office.
Frank then went with the police to the pencil factory where they
walked up to the second floor to his office. The office had an inner
and outer section, separated by a railing; Frank's desk was in the inner
office. The safe was in the outer office; it was placed in such a way
that, when the door of the safe was open, it shut off the view of the
hallway from Frank's desk.
In the presence of Captain Starnes, Patrolmen Rogers and Black, the
Negro Newt Lee, and the assistant superintendent of the factory, N, V,
Darley, who had just arrived on the scene, Frank opened the safe. He
took the time book from it, containing the names of the employees and
ran his finger down the list until he came to the name of Mary Phagan.
Then he said, "Yes. Mary Phagan worked here. She was here yesterday
to get her pay. I gave her an envolope containing $1.20, when she gave
me her payroll number. The number would be on her pay envelope. I
can tell you th eexact time she left. My stenographer left about 12
o'clock and a few minutes after she left, the office boy left. Then Mary
came in an<J got her pay and left."
Frank then asked to see where the body had been found. They all
went to the basement. Frank was in a great state of agitation. He
noticed that the latch on the basement door, leading out into an alley-
way, had been broken off and that the door was open a few inches. He
went with Darley to a tool box on the second floor, got a hammer and
nails and returned to the basement where he nailed up the door.
Meanwhile Lee had been taken to the police station and locked up
on suspicion. Frank went back to headquarters with Captain Starnes
where he gave a detailed statement about his movements on the previous
day. He expressed deep concern about the crime and said he would not
only offer any assistance he could but would also engage the services
of the local branch of the Pinkerton National Detective Agency to pursue
an independent investigation at National Pencil Company expense.
He suggested that, besides Newt Lee, two others should be questioned
— a Negro named Jim Conley, who worked as a general handy man and
janitor at the factory, and a white man named J. M. Gantt, formerly
employed as a shipping clerk at the factory, whom Frank said he had
discharged two weeks previously for stealing a dollar. He said he had
seen Gantt at the entrance of the factory at six o'clock the previous
evening; that he had given Gantt permission at that time to go up-
stairs to get a pair of shoes which Gantt had said he had left upstairs
and that Gantt and Lee were inside the factory and the entrance door
locked when he left for the day. He said that Gantt was on intimate
terms with Mary. He intimated that these intimacies included immoral
Captain Starnes was satisfied that Frank had no connection with
the crime. He had told a straightforward story. He was very nervous,
distractedly wringing his hands and wiping his brow; but, in the cir-
cumstances, this was natural enough. A brutal murder had occurred at
his factory; it would create a scandal; the publicity might be bad. He
had shown a great willingness to co-operate with the police. Captain
Starnes released Frank, thanking him for his help, and went to Newt
Lee's cell to see what the detective squad had got out of him by some
ol the more strenuous measures of the third degree. They had got noth-
ing. Captain Starnes ordered the Negro held for further questioning.
Patrolman Black, who had been standing by while Frank was giving
information to Captain Starnes, noticed a discrepancy in Frank's story.
But he kept silent.
Frank went home and told his wife and parents what had happened.
Friends and officers of the National Pencil Company gathered at the
Frank-Selig home that afternoon and evening for details and with offers
of help in solving the murder. Frank telegraphed his uncle, president
of the company, in New York, that a "factory worker was found mur-
dered in the cellar of the factory" and that Newt Lee, the night watch-
man had been arrested, but that Herbert Haas, attorney for the com-
pany, was on the job to protect the company's interests and thsut he
was hiring the Pinkerton agency to make an independent investigation.
The next morning Frank summoned Harry Scott, manager of the
local branch of the Pinkerton agency to his house and engaged him to
work on the crime. Meanwhile he ordered the factory closed for the day
except to the police, in order that the latter might have complete free-
dom in examining the premises.
At their first interview, Frank said to Scott, "I suppose you know
all about the case from the newspapers."
Scott replied, "I know nothing about the case. I don't rely upon
the newspapers for information; I dig it up myself. Suppose you give
me a detailed account of just where you were and just what you did
Saturday and yesterday."
Frank told him what he had already told Captain Starnes. Scott
then advised him to go again to police headquarters and dictate what he
had just said and sign the statement. Frank did this. His statement was
taken down in the presence of Scott and Chief of Detectives Newport
Lanford. Frank's statement, in brief, was this:
He went to work on the holiday, April 26, because he had some
end-of-the-month financial statements to get out and mail to officers
of the company and also because he had undertaken to pay off those
who had not got their pay Friday evening. He reached his office about
8:30 where he found that the day watchman had been on duty Bince
6:30, the office boy, Alonzo Mann, was waiting for him and two car-
penters, Arthur White and Harry Denham, were at work on the
fourth floor, tearing out old partitions and putting in new ones.
Frank continued. N. V. Darley, assistant superintendent, and Wade
Campbell, factory inspector, came in about 9 and he talked with them a
while. Miss Mattie Smith came in while he was talking to Darley and
Campbell and asked for her pay envelope and that of her sister-in-law.
He opened the safe and took out the package of envelopes which Schiff,
the cashier had given to him the night before and put them on his desk
where he would have them handy. Miss Smith left and he was at work
on his invoices when a Mr. Lyons, superintendent of Montag Bros., came
in and left. He went to the post office accompanied part of the way
by Darley at 9:30 and stopped on the way at the office of the Georgia
Cedar Company, a subsidiary of the National Pencil Company, where he
asked Miss Hattie Hall, company stenographer, to come over to his of-
fice and help him with some work. She declined to do so, wishing to en-
joy a half holiday, until he assured her she might leave by noon. She
preceded him to the office, while he went on to the post office. On his
return at about 11:05 he told Halloway he could leave as soon as he
wanted to and Halloway said he still had some work to do for White and
In his office he found a woman whom Miss Hall introduced as
Mrs. Arthur White, who was waiting for Frank's permission to go up-
stairs to see her husband. He gave her permission. Then Miss Corinthia
Hall and Mrs. Emma Clarke Freeman, two women who worked on the
fourth floor, came in and asked permission to go upstairs to get Mrs.
Freeman's coat. He granted this permission. The fathers of two boys
who worked at the factory came in for their son's pay envelopes and he
chatted with them for a while about some trouble one of the boys had
got into. When these men left Mrs. Freeman and Miss Hall came in and '
asked permission to use the telephone. They left about 11:30. The
stenographer left, checking out at 12.02, and the office boy left about
the same time.
Frank continued: About ten or fifteen minutes after the stenogra-
pher left, the little girl who had been identified as Mary Phagan came in
and got her pay envelope. Her envelope contained only $1.20 and she
had apparently worked only two days, because of the exhaustion of the
supply of metal for her machine, because she asked if the metal had
come and he said he didn't know. He heard her footsteps as she went
He continued working on his accounts until he glanced at his watch
and saw it was 12:45, and time for him to go to lunch. He knew his
mother-in-law and his wife were going to a matinee and he phoned his
house to see when lunch would be ready. The cook, Mineola McKnight,
told him it would be served right away. He went upstairs to tell the
carpenters and Mrs. White they would have to leave if they were going
out, because he was locking the front door. The men said they had
enough work to occupy them until he came back. Mrs. White said she
would leave right away. She followed him downstairs and left about
He put away his papers, washed his hands, locked the doors and left
the factory at about 1:10. He went home by street car, reaching there
about 1:20, had lunch, lay down for a while and smoked a cigarette,
and started back to the office. He was held up in traffic, because of
the parade, for fifteen or twenty minutes and reached the office a little
before three. The men on the fourth floor were just getting ready to
leave. They came down with him and Arthur White borrowed $2 from
him. They left about 3:10.
He found he still had considerable work to do. He had planned to go
to the baseball game and had asked the night watchman the day before
to come at four instead of at six. There was no way of reaching him
to tell him he had changed his mind, so Lee came at four. He told Lee
he could do whatever he wanted to do until six o'clock, but to be back
Frank continued. He left his office at 6:02. When he got down-
stairs he saw J. M. Gantt in an argument at the door with Lee. Gantt
wanted to go up to the fourth floor to get some shoes he had left there
but Lee had been instructed to let no one in the factory after six o'clock.
He told Lee to go upstairs with Gantt and look for the shoes. Lee locked
the door behind him arid Frank went home, arriving there about 6:30.
He tried to phone Lee to see if Gantt had found the shoes and had left,
but could not reach him until seven o'clock, when Lee said Gantt had
Frank said that he read the newspapers until dinner was served,
ate dinner, and afterwards some friends came in to play cards. He was
tired, excused himself, read a humorous story in a magazine, went up-
stairs, bathed and was in bed by ten o'clock. He thought he heard the
phone ring about 3 o'clock in the morning, but concluded it was a dream
and went back to sleep. He woke up just in time to answer Captain
Starnes' phone call. The reason he had not heard the phone ring before
was that the phone was in the dining room on the first floor, while the
bedrooms were on the second floor and the doors were closed.
Shortly after Frank had signed this statement, Scott got him alone
and asked him if he was in his office all the time, from the time the
stenographer and the office boy left until he went upstairs at 12:45 to
notify White and Denham that he would have to lock the front door.
Frank said he was.
Scott said, "You were in your office, did not step out of it even for
a few minutes, then, from 12 until 12:45? Are you sure of that?"
Frank replied that he was sure.
3. THE SEARCH FOR THE MURDERER
Meanwhile, J. M. Gantt had been picked up, at Frank's suggestion,
questioned and released. Conley, the Negro roustabout, had also been
questioned and released under secret surveillance. The police wanted to
watch his movments.
Newt Lee, the night watchman, was kept in jail and relentlessly
grilled. Patrolman Black and Pinkerton Detective Scott had found a
blood-stained shirt in the bottom of a trash barrel at Lee's Jiouse. Con-
fronted with the shirt, Lee said he had owned a shirt something like it
two years before but had not owned one like it since. He denied thie
shirt was his. He stuck to his story. It was:
He had been employed by the National Pencil Company as night
watchman only three weeks. His hours were from 6 at night until 6:30
in the morning. On Memoraial Day he had been watching the parade
and had got tired out about four o'clock and had gone to Frankls office
and asked permission to take a nap in the packing room until time
13 THE CASE OF LEO PRANK
to go to work. Although Frank had granted him permission to sleep there
before, he refused him permission on Saturday and told him to go out
and enjoy himself and return at six. He said he had then gone to a
beer saloon and rested there until time to go back to the factory.
He said that when he returned to the factory, he went upstairs to
punch the clock and that before he had time to do so, Mr. Frank told
him to wait until he took out the old slips and put in new .ones, dated
April 28. Lee said he was at his post at the front entrance when Mr.
Gantt came from across the street where he had been in a beer saloon
and said he wanted to go up on the fourth floor to get some shoes he
had left there two weeks before. Lee told Gantt he was not permitted to
pass anybody into the factory after six o'clock. Just then Frank came
downstairs and jumped back on seeing Gantt. Then Frank asked what
Gantt wanted. Gantt explained. Frank said he had seen the shoes on a
pile of trash a few days ago and they had since been swept out. Gantt
said he hadn't left only one pair of shoes; he had left two pairs, one pair
black and the other brown. Frank then told Lee to go upstairs with
Gantt to look for the shoes. Frank left and Lee locked the door. He
and Gantt ran the elevator up to the fourth floor, found the four
shoes and came down. Gantt talked with Lee a few minutes and then
About seven o'clock, Lee said, Mr. Frank called him and asked if
everything was all right. He said Mr. Frank had never called him on the
After Frank had turned over his signed statement to Chief of De-
tectives Lanford, the chief asked Frank to go to Lee's cell and talk to
him alone to see what he could get out of Lee. Lanford said the police
had not been able to shake Lee in his story and that his alibi seemed
air tight. Frank was alone with Lee for some time. He emerged saying
that he hadn't been able to get anything out of the Negro that Lee had
not already told the police.
But after Frank had gone, Lee reported that he had got something
out of Frank. He said Frank had inclined his head and whispered, "If
you keep up like this, both of use will go to hell." Lee had been chained
to a chair throughout the interview and the first thing he said to
Frank was (and this was Frank's version also) were: "Mr. Frank, it's
mighty hard for me to be handcuffed here for something I don't know
The police released Lee. He was in the basement of the factory the
next day when he saw Jim Conley washing a shirt. He reported this to
the police. The police picked up Conley and 'booked him on a suspicion
of murder. They sent the shirt to the county chemist for analysis. The
chemist found no evidence that the shirt had been stained with blood.
Conley said the reason he was washing the shirt was he had been
expecting a summons and wanted a clean shirt to wear to the police
All along the police had believed Conley was the murderer, not Lee.
Lee had a fine reputation for sobriety, industry, gentleness and re-
ligious piety; Conley had a police record of six arrests and convictions
for drunkenness and disorderly conduct. Lee was generally well-liked;
Conley was generally disliked by members of his own race. Conley lived
with a Negro woman who was not his wife in a shanty and was shiftless
and always hard up. He owed money for a watch and he had drawn ad-
vances on his salary at the factory. Moreover, it was the consensus of
opinion among the police and newspapermen that if Lee had been
guilty of the murder, he would not have remained with the body and
phoned the police; he would have got as far away from the scene of
the crime as possible.
Alternate crews of police questioners grilled Conley day and night,
eight hours at a stretch. He stuck to his story, which was this: That
on Saturday morning, April. 26, he had slept until 10 o'clock, it being
a holiday. He went out about 10:30 and visited several saloons, having
a few drinks in each. Then he bought a can of beer, a pint of whiskey
and some pan sausage. He returned home, cooked the sausage, drank
the beer and whiskey fell across the bed without taking his clothes off
and slept there until late Sunday morning. He said he had not gone
near the pencil factory and knew nothing about the murder until Mon-
When Conley was confronted with the notes alleged to have been
found beneath the head of the dead girl, he denied that he could read
or write. When this was reported to Prank, Frank told the police that
Conley was lying; that he not only could read and Write but his fa-
vorite means of communication, even to make trivial requests, was by
written notes; that he (Frank) had received many notes from Conley.
A Negro named Merney was found who alleged that Conley told him,
when drunk, on the night of April 26 that he had "just killed a wfaite
girl." (This witness was not put on the stand) And the police alleged
they had wrung a statement from Conley's paramour, Loraine Jones, that
he had confessed to her that he had murdered the factory girl. (This
witness did not so testify on the stand.)
The police let Conley languish in jail while they got busy trying to
build up a case against him. The whole city administration, and par-
ticularly the police department, was under heavy fire from the press.
Besides, there was a circulation war on in Atlanta between the con-
servative and long-established Atlanta Constitution and Hearst's Atlanta
Journal and these papers were vying in demands for action on the part
of the police. Since the first of the year there had been an even dozen
of unsolved rape-and -murder crimes in the city and fourteen such crimes
within less than a year. The papers were saying that if the murderers
were not speedily found and (brought to justice the people would rise up
and demand an entire new police force. A political crisis was at hand;
and it was plainly up to the city administration to find a scapegoat,
innocent or guilty, to save their own hides.
The police thought they had their scapegoat already behind bars. A
Negro is (or was) virtually disfranchised in Georgia; accused of rape
and murder, he stands very little chance even of getting a trial, much
less getting a fair trial, if his accusers have anything, even hearsay, to
go on; his punishment is usually swift, if not ghastly and illegal. But,
in Conley's case, the police, indefatigable and ruthless as they had been
in their third degree methods and wringing alleged affidavits out of
Conley's paramour and out of an irresponsible, gin-soaked barrel-house
bum, they could find no one who would testify to having seen Conley
in the neighborhood of the pencil factory on the day of the murder;
nor could they assemble any othe* evidence that would justify an in-
Conley, they knew, had lied when he said he couldn't read or write;
they knew pretty certainly that he was lying in every statement he
made. But that was just the rub: they couldn't get a story out of him
consistent enough to indict him; and they had been unable to wring a
confession out of him with some of the most refined methods of third
Meanwhile specimens of Conley 's handwriting. had been dug up and
compared with many samples of his writing which the police had forced
him to compose. These specimens were compared with the notes allegedly
found beneath Mary Phagan's head in the basement the morning her
body was discovered. The only handwriting experts available were bank
employees who disagreed as to whether Conley had written the notes.
Moreover, the police were anxious to prove rape as well as murder, in
order to cinch the case. But County Physician Dr. J. W. Hurt, who had
examined the body thoroughly on the morning the murder was discover-
ed, and 1v. H. Gheesling, who had removed the body to his undertaking
establishment and had prepared the body for embalming, reported that
they had found no evidence of rape.
Dr. Hurt's report said the hymen was not intact, but that it ob-
viously had not been intact for some time, its lesions were thoroughly
healed; that there was no violence to the girl's private parts; and that
an examination of the vaginal tract disclosed no semen present nor
any evidence of recent penetration; no congestion of the blood vessels of
the vagina or uterus. The undertaker reported .that the right leg of
the girl's drawers was slit or torn up the seam, but there was no iblood
on her underclothes and no bruises on the covered portions of her body.
There was a cord around her neck, deeply imbedded in flesh, he said.
He estimated that the girl had been dead ten hours or longer when he
examined her body at 4:30 in the morning; he was of the opinion that
the wound in the back of her head was not sufficient to cauJse death
and that it had been inflicted before she was strangled.
On Monday, April 28, the City Commissioners announced a reward
of $1,000 for information leading to the arrest and conviction of the
slayer of Mary Phagan and by nightfall the total rewards offered, in-
cluding that of newspapers, amounted to $4,500. This complicated the
work of the police without particularly aiding them. Persons eager for
the reward came forward with preposterous stories and preposterous
A machinist at the pencil factory brought some strands of hair
which he alleged he had found on a projecting part of Mary Phagan's
machine. He also claimed that he had found blood stains on the floor
near the machine, which had been covered with a white calcium solu-
tion. It was his contention that Mary's death had occurred in the ma-
chine room, on the second floor of the factory; that she had been
knocked or shoyed and had fallen against the projection of the machine;,
and that this fall had caused the deep gash at the base of Mary's skull.
Others came forward to declare they had found blood stains on the
floor near Mary's machine and elsewhere on the second floor.
Portions of the floor were chipped out and sent to Dr. Claude Smith,
city physician, bacteriologist and chemist, for analysis. He said his
analysis showed the presence of a few blood corpuscles but he could
not be sure they were human blood. His analysis of the hair compared
with an analysis of the hair from Mary's head failed to establish that
they were of the same texture or color.
4. LEO FRANK INDICTED
Late in the afternoon of April 29, events took a surprising turn and
moved rapidly. Frank was arrested, taken into custody, booked and
jailed on suspicion of murder. One of the arresting officers was Pa-
trolman Black. The other was Pinkerton Detective Scott, who had been
employed by Frank up until noon that day.
Scott had been discharged by Frank for doing what Scott was
obliged, by city ordinance, to do. The ordinance requires a private
detective agency to co-operate with the police and share with them all
information privately secured by the agency. Frank had objected to this
and had also objected to Scott's persistent questioning of himself.
And well he might; for Scott had disclosed to Chief of Detectives
Newport Lanford that, from his very first interview with Frank he
had proceeded on the theory that Frank was guilty. His reasoning was
that there was no need for Frank to employ a private detective, if he
was innocent, until after the police had failed to track down the mur-
derer within a reasonable time. A guilty man, however, he said, might
employ a private detective not only to allay suspicion against himself
but also to throw the police off the scent by diligently seeking clues
tending to fasten the crime upon some one else.
Scott said his suspicion of Frank deepened the more he investigated
the case. He said he believed Frank had lied to him and to the police
when he said he had not stirred out of his office between 12 and 12:45
p.m., on the day of the murder. Then, on questioning the girls at the
factory about the case and as to their whereabouts on the day of the
murder, he discovered that one of them, Monteen Stover, had called for
her pay at 12:05 on Saturday and had remained in Prank's office for
about five minutes alone. She had seen no one when she came in, while
she was there, or when she left. She decided Frank had gone for the
day and went away without her salary. Before leaving, she had tried the
door of the metal room across the hall from Frank's office, wishing to
make use of the women's rest room, but had found the door locked. She
was wearing tennis shoes at the time. These would have deadened the
sound of her footsteps.
Patrolman Black had noticed a discrepancy in Frank's, story on the
morning the body was found. Frank had told him and Patrolman Rogers
that he knew nobody by the name of Mary Phagan on the ride from
Frank's house to the mortuary. And yet an hour or so later, in making
suggestions to Captain Starnes, 'Frank said that Gantt was on familiar
terms with Mary, hinting that the two had been carrying on an illicit
How would Frank know that Gantt and Mary were intimate if he
did not know Mary's name and could identify her only by a payroll num-
ber? Black had asked himself. Black had then questioned Gantt about
Frank's knowledge of the murdered girl and Gantt had said Frank had
been pursuing her with attentions, without success; that he had often
heard Frank call her "Mary" and had seen him standing beside her, *
while she was at work, with his hand resting on her shoulder. A num-
ber of other employees had told Black that Frank called Mafry by her
first name and showed her marked attention.
A factory worker named Helen Ferguson had told the police she
had called for Mary's pay envelope on Friday at Mary's request and
that Frank had refused to give it to her, saying Mary would have to call
for it herself.
Scott had cut a piece from the bloody shirt found in Newt Lee's
trash barrel, shown it to Frank and asked him if he had ever owned a
shirt made from such material. Frank had replied emphatically that
he never had owned such a shirt. The emphasis was suspicion, ac-
cording to Scott, inasmuch as the material was a very common one for
shirts. A less suspicious reply would have been that he may have owned
at one time, or still possessed, shirts made of such material. Scott
thought it was possible that the shirt was Frank's but he was at a loss
to explain how it may have got into Lee's trash barrel, inasmuch as
Frank could hardly have put it there himself. Lee lived in the Negro
quarter and the presence there of a white man, other than the police,
would have excited notice.
The police had procured a number of affidavits from former and
present employees of the factory testifying to Frank's reputation for
lascivious conduct with various girls at the factory. And they had
wrung out of Mineola McKnight, cook at the Frank household, an affida-
vit swearing that Frank came home drunk on the night of the murder,
threatened to kill himself and would not allow his wife to sleep in the
same bed with him. Mineola repudiated this affidavit on the stand,
saying she had signed a statement without knowing what was in it in
order to get released from jail and that there was no truth whatever
in the statements of the affidavit. Other testimony accumulated by the
police was later deemed equally questionable by the prosecution and not
produced in court.
But the evidence against Frank seemed sufficient to a corner's jury
to recommend that he be held to the grand jury on a suspicion of the
A "blue ribbon" jury, including five members of Frank's religious
faith, was impaneled. At the conclusion of the jury's secret hearings,
Frank was indicted on May 24 for the murder and Jim Conley was in-
dicted as an accessory.
CONLEY IMPLICATES FRANK
The reason for this sensational development of the case became ap-
parent on the day Frank was indicted. For, on that day, the police
released to the press a statement signed by Jim Conley differing very
radically from a signed statement he had made on May 18 in which he
had denied he had been at or near the pencil factory on the day of
the murder. The police had obviously wrung this new "confession" out
of Conley some days previously but had withheldjt until it had been con-
sidered by the grand jury and had helped to bring about Frank's in-
In this statement of May 24, Conley said: That on Friday, the day
before the murder, Frank had come to him at the factory and asked
if he could write, to which Conley replied that he could "a little"; that
Frank thereupon produced a scratch pad and told him to write, "Dear
Mother a long tall black Negro did this by his self"; that he wrote it
three times at Frank's request; and that Frank gave him a cigarette box
containing two one dollar bills and two quarters and said, "I've got
wealthy people in Brooklyn. Why should I hang?"; that on Tuesday,
"before Mr. Frank got in jail he whispered to me to be a good boy and
that was all he said." (The newspapers, incidentally, were full of Frank's
history at the time, though not as a suspect, but only as superintendent
of the factory; and these stories stated that Frank came of a wealthy
family in Brooklyn.)
This story of Conley's was a little too bizarre even for the police.
But they kept questioning him. Four days later, May 28, Conley had
still another story ready. He signed a statement saying that he had
lied in previous statements; that on Saturday morning, April 26, he went
to three saloons drinking beer and whiskey; that he ran into Frank when
the latter was on his way to Sigmund Montag's office about 10 o'clock
in the morning; that Frank told him to wait a few minutes until he came
out of Montag's office; that when Frank came out, he asked Conley to go
back to the factory with him; that there Frank took a box and put it
next to the trash barrel on the first floor, near the entrance to the ele-
vator; that Frank went upstairs and "a young lady come down, that
was Miss Mattie (Hall) ; then Mr. Darley come down; I heard Mr. Darley
say 'Don't worry, I'll see you get that next week/ Then Mr. Holloway
comes down about five minutes after Mr. Darley is gone; then a colored
peg-legged fellow comes down and then Mr. Holloway went upstairs
and came down and left for good; then another lady in a green dress
stayed upstairs seven or eight minutes and comes down and left. ^
Then Mr. Frank whistled for me twice. I went upstairs and the double
* It will be noted here that, four days after Frank had been indicted, Conley
does not mention having seen Mary Phagan going up to Frank's office. He
mentions having seeing a lady in a green dress go up, stay seven or eight min-
utes, and come down. This young lady, presumably, is intended to account for
the presence of Monteen Stover. Even in his fourth .statement, 5 day's after
Frank's indictment, which on the points regarding those who came and went is
practically the same as in his statement of May 28. he does not mention having
seen Mary go upstairs. Nor does he identify the girl in the green dress as Mon-
teen Stover. On the stand his memory has become remarkably clear on this
point. He said the next person he saw "was this Miss Mary Parkins. That's what
I call this lady that is dead." And he said he heard people go into the metal room
and a lady's scream. Only then did he see Monteen Stover — and he remembered
her name — go up and come back down. Monteen, incidentally, did not hear any
scream and said she saw no one at the factory.
doors on the stairway was closed. 'You heard me, did you?' Mr. Frank
asked. I said 'Yes/ He grabbed me by the arm; he was trembling and
carried me into his office, then he said, 'Gee, here comes Miss Emma
Clark and Miss Corinthia Hall.' And he came back to me and gave me a
shove and put me into the wardrobe. They stayed a long time and I
was hot in there and sweating. After I got out, he asked me could I
write and told me to put down 'Dear Mother, a long tall black Negro did
this by hisself.' I wrote Negroes and he said 'Don't put no 's* in, they's
only one Negro.' I wrote it three times. Then Mr. Frank said, "Why
should I hang? I have wealthy people in Brooklyn.' I have no idea what
he meant. Then he asked me if I knew the night watchman and had I
seen him in the basement; and I said No. Then Mr. Frank said he was
going to send the note I had written and a letter to his people and
recommend me to them. He said, T have wealthy people in Brooklyn.'
Then he began cutting up and joking with me and said, 'I will see you
Monday if I live and nothing happens, James.' I asked him, Ts that all
you want of me?' and he said 'Yes' and took out two dollars and fifty
cents and told me to get drunk and go home. I went to the picture
show and went home and lay down across the bed and didn't wake up till
twelve o'clock Sunday."
(Author's note: Except for the words within quotation marks, I havs
briefed Conley's statement, because it was verbose; but I have pre-
served the essentials, including the incongruities and incoherencies of
it. The reader will do well to study the above statement— and all of
Conley's statements — carefully.)
CONLEY'S STATEMENT, MAY 29.
The next day, May 29, Conley signed a fourth statement. In this
story, he repeated, in effect, his story of May 28 of having met Frank in
front of Montag's office about 10 o'clock. (Reader, please bear this time
and circumstance in mind, because, as will be seen later, Conley, on the
stand, was to relate an entirely different story, his fifth, version of this
encounter.) Conley went on to say that, after he and Frank got back to
the pencil factory, he waited downstairs while Frank went upstairs.
Then, he said, Frank came down and asked him if he wanted to make
some money. Frank told him he had picked up a girl and let her fall
and her head hit against something and he wanted me to move her
"I hollered and told him the girl was dead and he told me to pick her up
and bring her to the elevator and I said I didn't have nothing to pick
her up with and he told me to go to the cotton box and get a sack.
I carried her on my shoulder and she was too heavy and slipped off
and fell. I hollered to Mr. Frank to come and help me and he said,
'Sh— hh!' and we picked her up by the head and feet. He went back
for the key to the elevator and unlocked the elevator door and we went
down. He said to back it up to the sawdust pile. He went up the ladder."
Then, said Conley, in Frank's office, Frank gave him a cigarette box
containing $2.50 and "let me have two hundred dollars." Then Frank took
back the money and said 'T will make it right with you Monday."
As will be seen later, these fantastic and contradictory statements of
Conley's formed the foundation upon which the state built its case
against Leo M. Frank. But it was only the foundation. And, inasmuch
as it was shaky foundation, the state did not lay any particular stress
upon it, except to insist that, essentially, Conley's story on the stand
(differing, though it did, from all of his previous statements) was true.
The state laid its greatest stress upon (1) its contention that Frank.was
given to immoral and perverted sexual practices; that he had seduced
a number of young factory workers, employing Conley as a look-out
while engaged in perversions in his office on Saturday afternoons; that
he had tried to seduce Mary Phagan but she had repulsed him; that he
refused to give Mary's pay envelope to a friend of Mary's on -Friday
afternoon in order to force Mary to call for her money on Saturday, a
holiday, when the factory would offer him comparative freedom from in-
trusion; that he had followed her from his office into the machine room,
bent not upon murder but upon lust; that he had struck her when she
repulsed him causing her to receive the gash in the back of her head
which had rendered her unconscious; thai he had gratified his lust in
the ladies rest room near Mary's machine; that he had strangled her,
in his fright, with the cord found around her neck; that he had employed
Conley to take the body to the basement there to burn it in the furnace;
that Conley had gone to a saloon to fortify himself for the Job of crema-
tion but had got drunk and did not come back; that Frank had pre-
viously dictated the notes to Conley and had placed them beside the
corpse in case the body was found before the body could thuis be cre-
mated the next dajf; and (2) the element of time; and (3) the testimony
of Monteen Stover, a 14-year-old co-worker of Mary's, whose presence
at the factory on the fatal Saturday was unknown to Frank until she
was put on the stand as a witness for the state.
Over 300 witnesses were subpoened for the trial, which began on
July 28, 1913 in the court house, of the Fulton Superior Court, Atlanta,
Judge L. S. Roan presiding. The prosecutor was Solicitor General Hugh
A. Dorsey, assisted by Harry Hooper and E. A. Stephens of the Solicitor-
General's office. The attorneys for the defense were Reuben Arnold
and L. Z. Rosser of the famous Atlanta firm of Arnold & Rosser, aided
by Herbert Haas, attorney for the National Pencil Company.
4. THE TRIAL
The summary to the jury of what the state was going to seek to prove
was delivered by Assistant Solicitor-General Hooper. In brief these
points which the state was going to seek to establish as facts were:
Mary Phagan met her death at the hands of Leo M. Frank in the
process of rape, which constitutes murder. The rape was premeditated.
Frank had seduced several other young girls in his employ and had
made unsuccessful advances to the beautiful 13-year-old Mary Phagan.
He knew she was coming to his office on Saturday before one o'clock
for her pay envelope, because Mary had asked her friend, Helen Ferguson,
to get her pay envelope on Friday when Helen called for her own salary
and Frank had refused to give Helen the money, saying that Mary would
have to call for it herself. It was unusual for Frank to refuse such
requests, for on that very day he had given the pay envelopes of other
employees to friends at the factory who signed for them and, on the
morning of the murder, had given the pay envelopes of two boys em-
ployed at the factory to the fathers of these boys. Conley had olften
been employed by Frank to act as a look-out at the factory and see
that Frank was not disturbed while he was performing immoral and per-
verted acts. Frank had asked Conley to coiae to.the office on Saturday
for another purpose of this kind.
Hooper's presentation continued: Frank's contention was that he
did not stir out of his inner office from 12 noon, on Saturday, April 26,
until 12:45 p.m., when he went upstairs to notify the workmen on the
fourth floor that he was leaving and would have to lock the doors. The
state contends that Mary Phagan came to Frank's office, at about 12:12
p.m., and got her pay; that, as she was leaving, she asked Frank if the
metal had come for the machines and that he replied, "I don't know"
and followed her into the machine room, using that reply as an excuse
to do so. Once inside the door of the machine room, he made advances
to her; she repulsed him; he hit her, knocking her down; he dragged her
into the women's rest room, raped her. and strangled her to death. He
left the body there and made immediate plans to dispose of it. At 12:45
he went up to the fourth floor to clear the three remaining persons
(besides Conley and himself) out of the building; but in this he was
successful only in getting Mrs. White out, the two workmen choosing
to stay there until they had finished their job. After Mrs. White left,
Frank called Conley and told him he had "struck the girl too hard"
and the two of them took the body, in the elevator, to the basement
where Conley agreed to burn it after he got back from lunch. Frank
gave Conley $2.50, then gave him $200 to burn the body but took the
money back, saying he would pay Conley when he had performed the
act of destroying the body and the evidence.
Hooper laid particular stress upon the fact that, whereas the de-
fense contended that Frank did not stir out of his office from 12 o'clock
to 12:45, that was because Frank when he told his story to the police,
did not know that Monteen Stover had called at his office after 12 o'clock
that day, had remained there for five minutes seeing no sign of Frank
and had left without her pay, after trying the door to the machine room
and finding it locked. The state's contention was, Hooper declared, that
during that -time Frank was absent from his office, he was engaged in the
rape and murder of Mary Phagan in the machine room.
(Author's note: The reader is here asked to bear in mind that
Hooper's contention was that there was a lapse of time between the
commission of the murder and the removal of the body from the second
floor to^the basement; that the body was not removed until after Mrs.
White left the building at about 12:55. Yet, in Solicitor-General Dorsey's
summation to the jury, his argument was that the murder and the re-
moval of the body were practically a continuous process. Dorsey charac-
terized Quinn's testimony that he was in Frank's office from 12:20 to
12:25 as perjury. Conley testified that the body was removed to the base-
ment between 12:56 and 1:20 p.m., but his story of the events of that
day, as he told it in an uninterrupted narrative on the stand, was, as will
be shown below, that the removal of the body occurred right after the
Now the most pertinent testimony at the trial follows:
MONTEEN STOVER: Arrived at the factory at about 12:05 p.m.;
went into Frank's office; he was not there; saw no one; remained sitting
in Frank's inner office for about five minutes; left, concluding that
Frank had gone for the day; heard no screams o»r voices; saw no one at
the entrance to the building or inside the building; on the way out from
Frank's office, tried the door to the machine room, wanting to go to
ladies' room; found the door locked; was wearing tennis shoes, yellow
hat and brown raincoat.
R. P. BARRETT, machinist at the National Pencil factory: On Mon-
day, betwen 6:30 and 7 a.m., found some spots on the floor that were
not there Friday when I left; also found some hair on the handle of
a bench lathe, which was turned over to the police. (Barrett's time-
placing was erroneous; the factory was closed on Monday except for
police inspection; also see next testimony.)
DR. CLAUDE SMITH; city chemist: Examined stains on wood chip-
ped from second floor machine room: found five blood corpuscles but
not sure they were human blood corpuscles. (Further testtmnoy was
introduced by the defense to show there are 8,000 blood corpuscles in
one drop of blood, whereas only five corpuscles were alleged to have been
found; also testimony was introduced to show that accidents were fre-
quent in which there was loss of blood in the machine room and that
the specimen was examined from a chip of the flooring which was cov-
ered with many layers of grime and varnish. Also, it was testified
variously that the "hair" was not hair, but four strands of wool; that
the hair was not like Mary's in color; and that it was like Mary's.
(Methods of crime detection were crude in those days.)
W. W. MATHEWS, motbrman on Atlanta street car lines: Mary
Phagan, whom I knew very well, got on board my car at Lindsey Street
at 11:50 a.m., April 26; we got to Broad and Hunter Streets at 12:10 p.m.;
Mary left the car at that corner; the National Pencil factory is a block
and a half away from Broad and Hunter.
W. T. HOLLIS, conductor on Atlanta Street car lines; Knew Mary
Phagan very well; she usually boarded my car; she got on our car. at
Marietta and Lindsay Streets at 11:50 a.m., April 26; usually gets off
at Broad and Hunter Street, where we arrived on schedule at 12:10;
Mary that morning rode around the block to Whithall and Mitchell
Streets before getting off. (Employees of the street car company were
then introduced with their time tables and reports on adherence to
schedule and delays. They corroborated the testimony of Matthews
and Hollis that the street car on which Mary rode into town reached
Broad and Hunter Streets at 12:10 p.m., on the 26th of April. Witnesses
who had paced off the distance from Broad and Hunter Street to the
factory and upstairs to Frank's inner office, established that the time
required by Mary to reach Frank's office— if she went directly there-
from Broad and Hunter Streets was about two minutes, longer if she
rode another block, as Hollis testified, and longer, if she strolled or
paused on her way. Mary, therefore, could not have reached Frank's of-
fice before 12:12 p.m.)
CORINTHIA HALL, employee at the National Pencil factory: went
to Frank's office, with Emma Clark, for our pay, arriving there about
11:30 a.m.; went upstairs for coat, came down, used phone and chatted
with Frank a few minutes; saw Miss Hattie Hall, Frank's stenographer,
the office boy and no one else; there was no one at the door when we
went in or came out; went to the Busy Bee restaurant about a quarter of
twelve and had lunch; while there Lennie Quinn came in, sat down
and chatted with us a while; said he had just been over to the factory
and talked to Frank.
EMMA CLARK, employee at the National Pencil factory: testimony
same as Corinthia Hall's except that she said Quinn came to the Busy Bee
after she and Corinthia had finished their lunch and had paid their
check; that he sat and talked with them a while and said he had just
come from Frank's office.
LENNIE QUINN, N.P.C., foreman: Went to Frank's office about
12:20 p.m., Saturday, April 26; staid there talking to Frank for ap-
proximately five minutes; saw no one there except Frank; there was no
one at the door, either when I went in or came out. (If true, this would
have givne Frank only 13 minutes to commit the assault and strangula-
tion. B. R.)
MRS. J. ARTHUR WHITE, wife of carpenter employed with Denham
on the fourth floor on April 26: Saw, my husband at the pencil factory,
April 26, from 11:30 to 11:50 a.m.; left and came back at 12:30 and left
again at 1 p.m.; at 11:30 saw no one at the entrance but, on the second
floor, saw Mr. Frank, Miss Hall, his stenographer, and two men; asked
Mr. Frank if I could see my husband; he said he would send some one up
with me; sent one of the men; I came down and went out and did some
shopping; returned at 12:30, Mr. Frank was standing outside of hi&
office and jumped when he saw me come up the stairs; went to the
fourth floor and was there with my husband and Mr. Denham, when
Mr. Frank came up and said he had to lock the doors and I had to leave;
he was in a hurry, but when I went downstairs to leave, I saw him sitting
at his desk. in the outer office in his shirt sleeves; there was a Negro
sitting on a box, near the door, on the first floor; I am not sure it was
Conley; the light was dim; did not notice the Negro very closely.
HELEN FERGUSON, machine operator, N.P.C., factory friend of
Mary Phagan's: Went to Frank's office at Mary's request on Friday to
get Mary's pay envelope for her; Mr. Frank refused to give it to me;
said Mary would have to call for it herself.
MAGNOLIA KENNEDAY, machine operator at N.P.C.: I was with
Helen Ferguson on Friday, April 25, when we both went to get our pay;
Mr. Frank was not paying off that day; we both got our pay from Mr.
Schiff ; Helen said nothing whatever about Mary's pay to Mr. Frank or
HARRY SCOTT, manager of the Atlanta branch of the Pinkerton
National Detective Agency: While Conley was in jail, I gave Conley pen-
cil and pad and dictated the words of one of- the notes to see how long
it would take him to write it; it took him six minutes to write part of
one note; Conley alleged he wrote the note at Frank's dictation three
times. (This testimony was introduced to show that all the occurrences
which Conley related, including the writing of the notes, could not have
taken place within the 34 1 / 2 minutes which Conley claimed they did and
which Hooper for the state contended was all the time expended from
the time Frank summoned Conley upstairs to tell him of the "accident"
until the body was left in the basement. Incidentally, Hooper for the
state contended one thing and Dorsey for the state contended another
about the time element. Scott was called to the stand on several occa-
sions to testify on certain specific points, notably as to what Frank told
him on their first interview; but, with one exception, this statement
about the time Conley consumed in writing, was Scott's only pertinent
testimony. The other pertinent testimony he offered was that concern-
ing Frank's exact words to him concerning his answer when Mary asked
Frank about the metal; Scott testified that Frank said he had said to
Mary, "I don't know." The defense argued that Frank's reply was a
simple, "No," whereas the state attached great significance to "I don't
know," as giving Frank an excuse to follow Mary into the metal room
where she had gone to find if the metal had come.
VARIOUS WITNESSES, including two newspapermen and several
police officers were put on the stand to testify that they had conducted
experiments to determine the time it would have taken Conley to do what
he related he did, and that the time consumed could not be less than
50 minutes, and probably at least 56 minutes, instead of the 34 x / 2 minutes
alleged by Conley and the state.
J. M. GANTT former shipping clerk and sometimes pay rool clerk at
the National Pencil factory; Friend of Mary Phagan's since childhood;
accused by Fraijk of a one dollar shortage in payroll account, two weeks
before the murder; refused to make restitution, because he said he
had not stolen the dollar; chose to quit first; had often seen Frank show
marked attention to Mary Phagan and heard him call her "Mary"; on
Memorial Day evening, about 6 o'clock, dropped by the National Pencil
factory to pick up some shoes left there two weeks before; night watch-
man, Newt Lee, would not let him in, saying he had orders to let no one
in; Frank came down the steps, seemed frightened on seeing Gantt; said,
"Howdy, Mr. Frank, and told him I wanted to get some shoes I had left
on the fourth floor in the shipping room; Frank said he had seen a pair
of men's shoes on a pile of trash several days ag(5 but they had been
swept out since then;" Gantt then said he had left two pairs of shoes
upstairs, not just one; then Frank directed Lee to go upstairs with him;
they went up in the elevator, which was unlocked, got the shoes and came
down; Lee had locked the door behind him and Frank had gone; he
stood chatting with Lee a few minutes and then left.
NEWT LEE; Negro night watchman: Mr. Frank told me on Friday to
come to work at 4; came at that time; Mr. Frank came to the door,
rubbing his hands and said he was sorry I came so early; told him I
had been watching the parade, was tired and badly needed some sleep
and could I lie down in the packing room; but he said I needed a good
time and to go downtown and stay an hour and a half and be back by
six sure; when I got back the doors were unlocked Just like I had left
them; Mr. Frank says, "What time is it?"; I says it's two minutes of
six; he says Don't punch the clock yet, there's a few worked today, I
want to change the slip'; when Mr. Frank put the tape in, I punched it
and went downstairs. Mr. Gantt came from across the street from the
beer saloon and says, 'I got a pair of shoes that I want to get upstair and
have fixed'; I says I ain't allowed to let anybody in after six; then Mr.
Frank came bustling out and ran into Mr. Gantt and jumped back
frightened; Mr. Frank said he thought he saw the shoes on a trash pile
the other day and they had been thrown out, when Mr. Gantt told him
what he wanted; but when Mr. Gantt insisted on going up, Mr. Frank
said, "Take him on up, Newt," and I locked the door and Mr. Frank
left and we went upstairs and found the shoes in the shipping room and
came down in the elevator and Mr. Gantt left; Mr. Frank phoned me
ajbout 7 o'clock, the first time he had ever done that, and asked me,
"Is everything all right?"
DR. J. W. HURT, county physician: Examined body of Mary Phagan
morning of the murder; no violence to the private parts; hymen not
intact, but not recently ruptured, long healed; no semen or spermatazoa
in the vaginal tract; no abrasions or evidence of recent penetration of
vaginal tract; no evidence of pregnancy; no congestion of blood vessels
around uterus or vagina; not of the opinion that the girl had ever
DR. H. F. HARRIS, physician, witness for the state: examined body
and contents of the stomach after the stomach had been removed for
embalming: Contents of the stomach, consisting of cabbage and wheat
bread or biscuits, indicated the victim had received blow within half an
hour after eating the meal; blow at back of head sufficient to cause
unconsciousness and stop digestive process but not sufficient to cause
death; death caused by strangulation; of the opinion that girl lived from
one half to three-quarters of an hour after eating meal; no sperm in the
vaginal tract; no evidence of violence to parts, except to walls of vagina,
which might have been produced by finger or by other means. (In re-
buttal of this testimony, the defense introduced medical testimony that
cabbage is hard to digest arid that no one could tell how long the food
had been in the girl's stomach before she was killed; that Dr. Harris had
examined the body nine days after it had been embalmed. D*. J. C.
Olmstead, Dr. W. S. Kendrick, Dr. Leroy Childs and Dr. Thomas Han-
cock testified that they had preferred charges against Dr. Harris with
the Board of Health, accusing him of dishonesty.)
JIM CONLEY, Negro, 27 years old, employed by National Pencil Com-
pany for two years as janitor and general handyman: Lives with
Loraine Jones; not married to her but has sexual intercourse with her;
arrested six times for drunkenness and disorderly conduct; can read
and write but not very well; can spell simple words like "beer" but
can't spell words like "whiskey"; can't make any sense out of the
words in the papers; got there the same time Mr. Frank did, 8:30 Satur-
day morning; he told me Friday to come Saturday and do like I done
before; I always stayed on the first floor and watched for Mr. Shrank
while he and a young lady would be on the second floor chatting. He
always told me that when a young lady came he would stomp on the
floor and I was to lock it and when he whistled I was to open it. He
says, "Now what I want you to do is to watch for me today as you did on
other Saturdays" and I says all right and went out and came back about
noon. Then Mr. Frank says, "There will be a young woman up here after
a while and me and her are going to chat a little; now when the lady
comes I will stomp like I did before and that will be the lady and you
go and shut the door. When I whistle I'll be through, so you can go
and unlock the door and you can come upstairs to my office like you was
going to borrow some money and that willgive the young lady time to get
out." The first lady that came along was a lady that worked on the
fourth floor, don't know her name. Next person was a Negro drayman.
He went upstairs. Next I saw Mr. Holloway and the drayman, a peg
legged fellow, coming down the steps. Mr. Darnley come down and left.
Mr. Holloway come down and left. Next person I saw was Mr, Quinn. He
went upstairs and stayed a while and then came down. Next person I
saw was this Miss Mary Parkins. That's what I call this lady that is dead.
After she went upstairs, I heard her footsteps going toward the office,
heard two or three people walking out of the office like they were coming
down the steps. But they didn't come down. They went back towards the
metal department. After they went back there I heard the lady scream.
Then I didn't hear no more. Next person I saw coming in there was
Monteen Stover. She came back down the steps and left. Then I heard
some one tip-toeing back toward the metal department. After that
I dozed off and wept to sleep. Next thing Mr. Frank was up over my
head stomping and then I went and locked the door. Next thing I
heard him whistling. I went and unlocked the door just like he said and
went up the steps. Mr. Frank was at the top of the steps. He said, "Did
you see that litle girl that passed here just a while ago? She came into
my office a while ago and I wanted to be with the litle girl and she
refused me and I struck her and I guess I hit her too hard; she If ell
and hit her head against something and I don't know how bad she got
hurt. Of course you know I ain't built like other men." I have seen him
with women lying on the table in the factory room and in the office with
women with their clothes up. He asked me to go back there and bring her
up so he could put her somewhere and said to hurry, there would be
money in it for me. I came back there and found the lady lying flat on
her back with a rope around the neck. The cloth was also tied around
her neck and part of it was under the head, like to catch the blood. I
noticed the clock? It was four minutes to one. I came back and told
Mr. Frank the girl was dead and he said, "Shhh!" He told me to go
back there by the cotton box and get a piece of cloth and put it around
her and bring her up. I saw her hat and a piece of ribbon lying down
and her slippers and took them and put them all in a cloth. Then I
tried to carry her out but she was heavy and I called to Mr. Ffcank to
help me. He caught her by the feet and I laid hold of her by the
shoulders. Then he got the key to the elevator and we took her to the
basement, where I left her. I opened the cloth an$ rolled her out on the
floor. We both went back up to his office. He looked out the door and
said, "My God! Here is Emma Clark and Corinthia Hall! Come here, Jim."
And he put me in a wardrobe and they came in there and I heard them
go out and Mr. Frank came and said "You are in a tight place. You done
very well." He taken a cigarette and a match and hands me the box
of cigarettes and I lit one and then he said, "Can you write?" and I said*
"Yes, a litle bit." And he takes his pencil to fix up some notes. I wajs
willing to do anything for Mr. Frank because he is a white man and
superintendent. I sat down at a table and Mr. Frank dictated the notes
to me. Then he pulled out a roll of greenbacks and says, "Here's $200."
I took the money and after a while Mr. Frank looked at me and said,
"You go down there in the basement and take a lot of trash and burn
that package that's in front of the furnace." I told him "All right." But
I was afraid to go down there by mysel-f . He said, "There is no need of
me going down there." He looked at me kind of frightened and said,
"Let me see that money," and he put it back in his pocket and said,
"You keep your mouth shut. That is all right. Why should I hang? I
have wealthy people in Brooklyn." I said. "Mr. Frank, what about me?"
and he said, "That's all right. Don't worry. Just come back to work
Monday like you didn't know anything and keep your mouth shut. If
you get caught I will get you out and send you away. Can you come back
this evening and do it?" I said, "Yes. I was coming to get my money."
He said, "Well, I am going to get dinner and you come back in about
forty minutes. I'll fix you the money. We left the factory at 20 minutes
after one and I went over to the beer saloon and took the cigarettes out
of the box and there was some money in it, two paper dollars and two
silver quarters and I took a drink and laid down across the bed and
went to sleep until half past six. That's the last time I saw Mr. Frank.
Next I saw him on the fourth floor on Tuesday when I was sweeping. He
bent over and whispered to me, "Now remember to keep your mouth
JIM CONLEY, on cross examination, reiterated much that he first
recited, pretty much in the same language except he fixed the time of
meeting Frank as 10 o'clock, in front of Montag's office, Saturday morn-
ing! Under direct questions from Solicitor-General Dorsey, Conley elab-
orated upon Frank's alleged sexual habits, giving names and dates of
occasions when he alleged he had seen Frank engaged in perverted sex
practices with these women. He alleged that in July, 1912, and in Octo-
ber, 1912, thqre was a cot in the basement, which Frank and another man
used for immoral purposes. He said that the "lady I watched for, last
July, was Miss Daisy Hopkins." He alleged that Miss Hopkins submitted
to Frank in Frank's office and went to the "basement with a companion
of Frank's on several occasions; and that now and then there would be
a party of two men and two women in Frank's office for immoral
practices. Daisy Hopkins was put on the stand by the defense. She said
she was married; that she had never gone to Frank's office on a Satur-
day or at any other time and that she had never gone into the basement
of the pencil factory with any one. C. B. Dalton one of the men with
whom Conley alleged he had seen her to go into the basement with,
was put on the stand by the state. He swore that he had had intercourse
with Daisy Hopkins at the factory on several occasions and otherwise
corroborated Conley's testimony. His testimony was assailed by counsel
for the defense on the ground that Dalton was a convicted thief. De-
fense counsel also placed witnesses on the stand who swore they would
not believe Dalton on oath. Then, in succession, a great number of wit-
nesses were placed on the stand by the defense, some black and the
others white, who testified, simply, that they would not believe Conley
A. N. HOLLOWAY, day watchman, Negro, employed five years at
National Pencil factory: Duties that of guarding the factory against
burglary, inspecting premises periodically for intruders or signs of fire,
looking after elevators and running elevator during work days; arrived at
6:30 a.m., Saturday morning, April 26; left by Frank's permission at 11:45
a.m.; did not see Conley the day of the murder; never did see Conley at
the factory on a Saturday; if there is any cleaning to be done, it goes
over from Friday until Monday; never saw any woman go to Frank's
office on a Saturday except his wife, who sometimes helped him with
secretarial work, his stenographer and other employees who belonged
there; never saw Daisy Hopkins at the factory at any time; have been at
factory every Saturday since June last year; Conley was never at factory
on Saturday; never did see Conley watch the door downstairs or give
signals to Mr. Frank or Mr. Frank give signals to him; would have seen
them if they did because I had to watch the door; locked the elevator
Friday night but forgot to lock it Saturday morning when I left.
J. ARTHUR WHITE, carpenter: Employed on the fourth floor of the
pencil factory from nine o'clock Saturady morning, April 26, until three
o'clock that afternoon; in company with Harry Denham; the elevator
was not run at any time, between 9 a.m.; and 3 p.m., on Saturday;
would have known it if elevator had been used, because the pulley wheels
and other operative machinery of the elevator is on the fourth, or top,
floor and uncovered and there is a great clanking of this machinery when
the elevator is in operation; heard no screams or cries at any time, but
that is natural enough because he and Denham were on the fourth
floor and engaged much of the time in hammering and sawing. Never
HARRY DENHAM, carpenter, working with White: Corroborated
testimony of White; did not hear elevator; would have heard it, if it
had been run at any time he was on the floor in the building. Did not
see Conley; saw Holloway, Darnley, Frank, Mrs. White; corroborated
Mrs. White's and Frank's testimony about the time Frank came to the
fourth floor to notify them he was leaving for lunch.
RUTH ROBINSON, DEWEY HEWELL, W. E. TURNER and J. M.
GANTT: All testified that Frank was on intimate terms with Mary
Phagan and called her by her first name.
GRACE HICKS; employed at the National Pencil factory five years:
worked at machine alongside of Mary Phagan: in five years Mr. Frank
spoke to me only three times; never heard Mr. Frank speak to Mary
Phagan or Mary speak to him.
LEO M. FRANK, statement to the jury, under oath: Related the
facts of his birth, education, marriage, connection with the National
Pencil Company and that he arrived at his office, on Saturday morning,
April 26, at about 8:30; "Alonzo Mann, the office boy, and Hollowlay,
the day watchman, were on duty when I came in; conversed with Mr.
Darley and Mr. Wade Campbell, inspector of the factory, in my office,
when they came in about 9; Miss Mattie Smith came in while I was talk-
ing with them at about 9:15 and asked for her pay envelope and for that
of her sister-in-law and I went to the safe, unlocked it, and got out the
package of envelopes which Mr. Schiff had given me the evening before
and the records for the previous day, and I put them in my cash box
where I would have them handy.
"I was at work on the invoices when I was interrupted by Mr.
Lyons, superintendent of Montag Brothers; went over to Montag's,
after Mr. Lyons had left, Mr. Darley left with me at about 9:30 or 9:40;
stopped at Hunter and Forsyth streets where we each had a drink at
Cruikshank's soda fountain; bought a package of Favorite cigarettes
and lit one; went to Montag's office, arriving there about 10; asked Miss
Hattie Hall, the company stenographer, to come to my office; to help
me with work; spoke with the Messrs. Montag, Matthews, Cross and
Harry Gotheimer, sales manager of the National Pencil Company; re-
turned to the office alone at 11:05; saw Mr. Holloway there and told him
he could go as soon as he got ready and he told me he had some
work to do for Harry Denham and Arthur White. I went into the office
snd found Miss Hattie Hall who had preceded me, and another woman
whom she introduced me to as Mrs. Arthur White. Mrs. White said she
wanted my permission to see her husband. I told the office boy to call
up to Mr. Schiff and find out when he was coming down. The answer
was that Mr. Schiff * would be right down. About this time Mrs. Emma
Clark Freeman and Miss Corinthia Hall, two of the girls who worked on
the fourth floor, cam6 in and asked permission to go upstairs and get
Mrs. Freeman's coat, which I readily gave and at the same time told
them to tell Mr. White that his wife was downstairs. A short time after
that two gentlemen came in, one of them a Mr. Graham and the other
the father of a boy by the name of Eddie Burdette. These two boys had
gotten into trouble during the noon recess the day before and were down
to police headquarters and didn't get their pay envelopes the night
before. I gave the envelopes to the fathers and chatted with them at
"Just before they left the office, Mrs. Freeman and Miss Hall came
into my office and asked permission to use the telephone. Mrs. Freeman
and Miss Hall left the office, as near as may be at a quarter of twelve
and I went over my letters and signed them and transmitted some orders.
There were in the building, then, Arthur White and Harry Denham and
Mr. White's wife on the top floor. From ten to fifteen minutes after
Mrs. Freeman and Miss Hall left, this little girl whom I afterwards found
to be Mary Phagan entered my office and asked for her pay envelope. I
asked her number and she told me. I went to the cash box and took out
her envelope and handed it to her, identifying her envelope by number.
She left my office and apparently had got as far as the door leading
to the outer office, when she evidently stopped and asked me if the
metal had arrived and I told her no. She continued on her way and I
heard her footsteps as she went away. A few minutes after she left
me I had an impression of a female voice saying something. I don't know
which way it came from; it just passed away and I had that impression.
This little girl evidently had worked in the metal department and had
been laid off owing to the fact that some metal that had been ordered
had not arrived at the factory. Hence the question. I only recognized
* The introduction of Schiff's name here and further along in the narrative
is curious. It is also ambiguous. When Frank said he told the office boy to "call
up to Mr. Schiff" did he mean that he told the boy to phone Schiff at his house
or phone Schiff in some part of the building? And when he says he told Quinn
that Schiff had "not come down yet" did he mean downstairs or down from h ; s
home? If he meant that Schiff was upstairs, he does not account for Schiff's
ever having left the building. He could not be cross-examined. The reason for
his introducing Schiff's name at this point remains an enigma.
the little girl from having seen her around the plant and did not know
her name, simply identifying her envelope from her having called her
number to me.
"She had left the plant hardly five minutes when Lennie Quinn,
foreman of the plant, came in and told me he couldn't keep away from
the factory even on a holiday. I smiled and kept working. He asked
me if Mr. Schiff had come down and I told him he had not and he
turned around and left. I continued working until I looked at my
watch and noticed it was a quarter to one. I called my home on the
telephone, for I knew my wife and my mother-in-law, were going to a
matinee and I wanted to know when they would have lunch. Mineola
answered they would have lunch immediately and for me to come right
home. I gathered up my papers and went upstairs to see the boys on
the top floor. I saw Arthur White and Harry Denham and Mrs. White
and asked them when they were going to be ready to go and they said
they had enough work to keep them busy several hours. I noticed that
they had laid out some work to do and I had to see what work they had
done and were going to do. I asked Mrs. White if she was going or I
would be obliged to lock up the front door and she said she would go
right down. I went down and gathered up my papers and locked my
desk and washed my hands and put on my hat and coat and locked the
inner door of my office and locked the street door and started to go
"Now gentlemen, to the best of my recollection, from the time the
whistle blew for 12 o'clock * until a quarter to one, when I went up-
stairs and spoke to Arthur White and Harry Denham, to the best of my
recollection, I did not stir out of my inner office, but it is possible that to
answer a call of nature or to urinate I may have gone to the toilet. Those
are things a man does unconsciously and cannot tell how many times
nor when. In my office with the safe door open it is impossible for me
to see out but it is also impossible for people to see me inside.
"I arrived home at 1:20 and found my wife and mother-in-law eating
their dinner and my father-in-law just sitting down. I called up my
brother-in-law to tell him that on account of the work I had yet to
finish I would be unable to go with him to the ball game. After a few
minutes my wife and mother-in-law finished dinner and left and told
me good-bye. My father-in-law and I finished dinner, which Mineola
served us. After dinner I lighted a cigarette and laid down a few
minutes, got up and walked to Georgia Street to get the street car. I saw
the Washington Street car coming and ran to get on it. In the car I
talked to Mr. Loeb on the way to town. At the intersection of Washington
and Hunter Streets in front of the fire engine house there were a
couple of cars stalled ahead of us and other cars were waiting to see the
memorial day parade. After I stood there five minutes I told Mr. Loeb
I was going to get out and go on as I had work to do. I went down Hun-
ter Street. When I got to the corner of Whitehall and Hunter Streets the
parade had started to come around there and I had to stay there fifteen
or twenty minutes and see it pass. Then I went down to Jacobs and
purchased twenty-five cents worth of cigars. Then I went down Forsyth
street to the factory and unlocked Jbhe door and left it open and went up
to tell the boys I had come back. They were preparing to leave and I
went inside my office and opened the safe and opened my desk and
hung up my coat and hat and started to work on the rest of the finan-
cial report. Mr. Schiff had not come down and there was additional work
for me to do.
"I heard the bell ring on the time clock and Arthur White and
Harry Denham came into my office and Arthur White borrowed two dol-
lars from me in advance on his wages. I had gone to work on my re-
* Dorsey called attention to this error in his summation but did not dwell
on it except to cast reflection upon the veracity of Frank's rather minutely de-
tailed narrative. The noon whistles did not blow that day; it was a holiday; all
factories were closed.
PQrt when I happened to go out to the lavatory and on my return I
noticed Newt Lee, the night watchman, coming towards the head of
the stairs, coming towards me. I looked at the clock and remembered
I had told him the night before to come back at four for I expected
to go to the baseball game. Newt Lee came along and greeted me and
offered me a banana, which I declined and told him there was no way
of letting him know sooner that I would be there at work and had
changed my mind about going to the ball game. I told him he could go
if he wanted to or could amuse himself in any way he saw fit for
an hour and a half and to be back at six? He went downjstairs and
I returned to my office.
"I finished this work at about 5 to 6, took the used slips ouifc of the
time clock and replaced them with new ones. The slips I put on were
marked April 28. As I was putting in the slips I saw Newt Lee coming up
the stairs and looking at the clock. It was near six. I finished putting in
the slips and was washing my hands when I heard Lee ringing the bell on
the clock registering the first punch and he went downstairs to wait my
departure. At the front door I saw J. M. Gantt whom I had to let go
two weeks previously. Lee said he wanted to go back into the factory and
had refused him permission because he understood he was to let no one
in after six o'clock, except on contrary orders from Mr. Dairley or my-
self. I asked him what he wanted. He said he had left a pair of black
and a pair of tan shoes in the shipping room. I told Newt Lee it would
be all right to pass Gantt in. Gantt went in and Newt Lee closed the
door and locked it.
"I then walked up Forsyth Street, posted two letters, got a drink at
the soda fountain, bought my wife a box of candy and arrived home at
6:25. I read the papers until 6:30, then called the factory and could
get no answer. I called again at seven and asked if Mr. Gantt had gone
and Lee said yes. I asked if everything was all right at the factory and
he said it was. I had supper and phoned my cousin, Mr. Ursenbach
and asked him if he would be home that evening, but he said no, he
had another appointment. So I stayed home and read the newspapers.
I saw Mineola pass out about eight. In the evening Mr. and Mrs. Emil
Selig, my parsnts-in law, had company, Mr. and Mrs. Morris Goldstein,
Mr. and Mrs. M. Marcus, Mrs. A. E. Marcus and Mrs. Ike Strauss. I sat
reading until 10:30, had a bath and went to bed."
Frank continued his statement, in which he related subsequent
events. He told how, on Monday, he had stripped bare at police head-
quarter, while the police examined his body for any marks or bruises,
and how he had taken the police to his home at his own suggestion
got out his laundry bag and dumped the contents on a bed, so that they
might examine his shirts and underclothing for presence of blood or
other incriminating evidence. He said that Detective Scott had shown
him a piece of cloth and had asked him if he had a shirt of that
material and he had told Scott that he did not. It was a piece jErom
the shirt found in Newt Lee's refuse barrel.
The newspapers made much point of the fact that Mrs. Frank did
not visit her husband while he was in custody. He explained that by
saying that he sent a request for her not to come; he did not want her
to see him in jail and watch him undergo the questions of the police. He
was also criticized for not visiting Newt Lee in his cell and he said that
he had gone there once and could not bear to watch the way the police
tortured the poor Negro trying to wring something out of him. He
closed his statement by reaffirming his innocence and by saying that
if he had to pay the penalty of death for something he did not do,
his own life would not matter, but the shame would be on the state of
Assistant Solicitor General Hooper delivered the first summation,
outlining the state's contention on the basis, of the facts revealed. He
was followed by Luther Rosser for the defense. Luther Arnold, for the
defense, took up where Rosser left off and assailed the nature of the
state's evidence and the character of some of the witnesses introduced
by the state, in the light of testimony of other witnesses who swore they
would not believe these state witnesses on oath. Solicitor General Hugh
A. Dorsey delivered the final summation, part of it on August 25 and part
on the morning of August 26. borsey's summation laid much less stress
on Conley's testimony than upon these factors:
(1) Frank's assertion to the police and at the undertaking estab-
lishment that he could not identify the dead girl by name, whereas num-
erous witnesses among the factory's employes testified that Frank called
her "Mary" and showed her marked attention.
(2) The testimony of Helen Ferguson, a factory employe, that Mary
Phagan had asked her to get her (Mary's) pay on Friday, when she
(Helen) called for her own, and that Frank had refused to give Mary's
to Helen, saying that Mary would have to call for it herself and that he
would be in the office all day Saturday and Mary could call fojr it then.
It was testified that Frank did not make this requirement of others,
that Mattie Smith had collected her sister's pay and that two young sons
of factory workmen had failed for and got their fathers' pay from Frank.
By this, the state sought to establish that Frank had known on Friday
that Mary would be coming, in person, for her pay on Saturday and that
he had planned it that way, because he had been making amorous
advances to Mary.
(3) The discrepancy between Frank's statement to the police and
his later statement to the jury concerning the words he said to Mary
Phagan when she called for her pay that Saturday morning. Mary
,had worked only part of the week, because the supply of the tin used for
affixing erasers to pencils at her machine had run out. To the police,
Frank had said that, in reply to Mary's inquiry whether the new supply
of the metal had arrived or not, he had answered: "I don't know." Later
he maintained he had replied with a simple "No." It was the Sfcate's
contention that his first statement was correct and that his answer
to Mary pave him and excuse to follow her into the machine room when
she left his office.
(4) The testimony of Monteen Stover that she had gone to Frank's
office on Saturday and had been there from about 12:05 p.m. to about
12:12 p.m. Monteen's testimony was corroborated by witnesses, including
the street car conductor on whose car she rode to the office and by
references to the street car company's schedules and the calculated time
it took Monteen to leave the street-car and arrive at Frank's office. Mon-
teen testified that after waiting alone in Frank's office for about five
minutes she concluded he had gone for the day and that she left without
her pay. Frank never knew that she had been there. The state con-
tended that while Frank was out of the office during Monteen's stay
there, he was in the ladies' washroom at the end of the machine room
on the second floor, into which he had followed Mary. Frank maintained,
even in his final statement to the jury, that he had not left his desk
between 12 noon and 12:45.
(5) The testimony of Dalton and various factory workers as to
Frank's character and reputation for lasciviousness.
Dorsey's hypothesis concerning the crime differed in some import-
ant essentials from that of his assistant, Hooper; and also Dorsey de-
parted from the record time after time without any challenge from
attorneys for the defense. It would almost seem as if he were giving the
defense an opportunity to break down his own case, so frequently did
he cite, as facts, occurrences and the time of them which were not
according to the evidence.
Assistant Solicitor Hooper placed the time of the murder at between
12:05 and 12:20. According to him it occurred in the machine room on
the second floor. He contended that Frank hit Mary a blow over the
left eye, when she repulsed him, knocking her down; that in her fall she
received the gash in the back of her head, which rendered her uncon-
scious; that, realizing that attempted rape is a lynching matter in the
South, Frank, in a panic of fear, strangled the girl with a cord; that
he left the body in the machine room and locked the door and returned
to his office deciding what to do with the body; that he was seen there
by Mrs. White at 12:30 and probably by Quinn about five minutes earlier;
that after Quinn left, he made an effort to clear the building of all ex-
cept himself and Conley, going up to the fourth floor for that purpose
at 12:45; that he summoned Conley after Mrs. White left the building
and that the removal of the body occurred between 1^:50 and 1:20. This
coincided with Conley's story.
But Dorsey's hypothesis was that Mary neved did get her pay en-
velope; that she asked if the metal had come, when she first came into
Frank's office, and that Frank followed her into the metal room when
she went to look; that Frank killed and raped Mary in the women's
rest room, went upstairs immediately and got Mrs. White out of the
building by 12:35. This hypothesis met the defense's contention that
Conley's discovery that the girl was dead, his writing the notes and
taking the body to the basement could not have occurred within the 34
minutes of Conley's story. But there was no evidence to support this
hypothesis. The testimony of a state's witness, Mrs. White, denied it.
Mrs. White testified that she went up to "the fourth floor at 12:30, seeing
Frank standing outside of his office in his shirt sleeves on her way up.
Dorsey further said, "At 12:3.0 Mrs. White says she went down and saw
Conley sitting on some boxes on the first floor on her way out." She said
nothing of the sort; she said she went up at 12:30 and came down "a
little before one" and saw a Negro on the first floor but could not
identify him as Conley. Counsel for defense did not challenge him on
these important misstatements of evidence; but here the reason is clear;
in his statement to the police Frank did not mention having seen Mrs.
White at all until he went up to the fourth floor, and in his statement
to the jury, he mentions having seen her at 11:30 but not again unftil
after 12:45. The defense wished to ignore Mrs. White's testimony about
seeing Frank outside his office at 12:30.
I think the defense seriously erred in not eliciting from White
and Denham (both of whom were defense witnesses, although Mrs. White
was a witness for the state) testimony concerning the time she went
upstairs. She said she went upstairs at 11:30, came down, went shopping,
came back and went upstairs again at 12:30; but there was no corrob-
orative evidence to support this statement. There was no evidence to
•support Quinn's statement that he had been in Frank's office from
12:25 to 12:30 either; and, moreover, in his original statement to the
police Frank said nothing about having seen Quinn that day and yet
in his. statement to the jury he made considerable point of Quinn's visit,
saying that Quinn said he couldn't stay away from the factory even
on a holiday.
Quinn and Mrs. White conflicted in their testimony. Both said they
saw Frank at 12:30, Mrs. White when she was coming in and Quinn as he
was leaving Frank's office; but neither saw the other and one testified
she saw Frank standing outside his office whereas the other testified
he saw Frank at his desk. Quinn's testimony was considered valuable
to the defense, of course, as placing Quinn in Frank's office so soon after
Mary Phagan's arrival — too soon, it would appear, for the commission
of the crime by Frank in accordance with the state's hypothesis.
Dorsey attacked Quinn's testimony as prejury and denied that
Quinn was in the factory that day; no one testified to having seen Quinn
at the factory that day except Conley and, in none of his statements
to the police did Conley say anything about Quinn. Mrs. Freeman and
Miss Hall testified to having seen Quinn at the Busy Bee restaurant
and to having heard him say he had just been to Frank's office, but
they did not see him at the office. They were defense witnesses and per-
haps their memory a month after the murder had been confused
about what they heard Quinn say.
Was the defense afraid to question White and Denham about the
time, or times, Mrs. White came up to the fourth floor? Were they
afraid that they would testify that she came up at 11:30 and stayed until
about 12:50? If so, the defense had nothing to be afraid of, because
Dorsey practically threw the case in their lap by putting the time of
Mary's arrival as at 12:20 (which was certainly after Monteen Stover's
arrival and departure) and of Mrs. White's departure from the building
as at 12:30! This was to contend that Prank followed Mary into the ma-
chine room, assaulted and raped her, went into the hallway and got a
cord, went back and strangled her, washed his hands, arranged his
clothing, locked the machine room door, walked up to the fourth floor
and got Mrs. White out of the building, all in the space of ten minutes!
Of course defense counsel could not anticipate that Dorsey would
so argue as to strain credibility covering his own case in his summation.
And Dorsey's summation was the last statement of counsel to the jury.
But, when Dorsey went outside the record to make such statements as
facts, defense counsel could have challenged him on the record. And,
even if the defense had to produce the state's own testimony, it would
have certainly tended to show that the commission of the crime
could not have occurred within the time allowed by the state, in the
manner described by Dorsey.
Dorsey again went very seriously outside the record in saying that
blood was found on the girl's drawers and that there were other indica-
tions of rape. There was no testimony offered by the state to justify
these assertions; indeed the testimony was to the contrary. Moreover, it
was Conley's testimony and Hooper's contention that Frank was not
capable of normal sexual relations.
By his failure to challenge Dorsey for going outside the record on -
time-element, the defense enabled Dorsey to go on and contend that,
as soon as Mrs. White was gone, that is, shortly after 12:30, Frank called
Conley upstairs and, that the disposal of the body was carried out, along
with the writing of the notes, within the next thirty or forty minutes,
thereby meeting the testimony that placed Frank out of the factory and
home by 1:20.
But reliable testimony of newspapermen and police, who conducted
experiments, showed that the body could not have been disposed of in
the manner stated within less than 50 minutes. It would seem here that
Dorsey again was arguing against his own case, in effect. Nor did he so
state the case as to get Frank back at the office before 3 o'clock. The time
element was important to the defense, and the defense should have
taken greater advantage of it. For, if Frank told Conley to be back within
45 minutes to burn the body and had locked the door, it sems unlikely
that he himself would take one hour and fifty minutes for lunch.
It would almost seem as if Dorsey, without being thoroughly con-
vinced of it himself, was trying to make out that Frank, without having
either rape or murder in his heart, had made an indecent proposal to
Mary; that he had struck her when she resented it; that she had been
knocked unconscious in her fall; and that, in panic, he had strangled
her. The state had introduced ten girls and women, all employees at the
factory, to testify that Frank's reputation for "lasciviousness" was bad;
testimony concerning two women, by name, was given, with whom it
was alleged that Frank had immoral relations at the factory; one of
these women denied that she had ever been with Frank at any time at
the office, but witnesses gave corroborative testimony that Frank had
several times gone with Rebecca Carson into the ladies' dressing room
for immoral purposes and that, one one occasion, Frank went into the
room while some girls were undressing.
Now, in addition to devoting the major portion of his summation to
what reads like a prosecution of Conley (who was not on trial) rather
than like a defense of Frank, Reuben Arnold, in effect, not only con-
ceded to the prosecution that his client was. or had been, given to im-
moral conduct, but apologized for him! He said, at one point, "Hooper
says there were bad things going on in the pencil factory and that it is
natural for men to cast about for girls in such an environment. We are
not trying this case on whether or not you and I and Prank have been
perfect in the past. This is a case of murder. Let him who is without sin
cast the first stone."
There can be no doubt that the famous Reuben Arnold, who had
triumphed over so many prosecutors in criminal cases, knew what he
was about, or thought he knew, when he made a statement like that.
But to me it is a little like the statement of a man who held back a
mob, bent upon lynching, while he made an address upholding the prin-
ciple of fair trial. The man ended by saying, "I am against your taking
the law into your own hands. . . . But use your own judgment." More
than 100 witnesses had testified to Frank's good character and reputa-
tion, including girls who worked alongside of Mary Phagan; they testi-
fied that Frank rarely spoke to any of the girls in the machine room
and then only in impersonal manner, not by name, and only to give in-
structions. Literally scores of witnesses were introduced to refute the
testimony of Conley and Dalton that Frank was given to immoral prac-
tices at the factory; their testimony was that Conley 's and Dalton's
reputation for veracity was bad.
Yet Arnold, in effect, conceded that his client had had immoral re-
lations with other girl workers at the factory! This concession was
bound to carry considerable emotional weight, if only subconsciously,
with a Southern jury, whose traditions (however frequently dishonored
in fact) idealize womanhood and constitute all males the protectors of
womanhood; and the charge here conceded by the defendant's own
attorney was that the superintendent of a factory had abused his posi-
tion and his power to give or withhold jobs in order to gratify his lust
with 'teen age factory girls. ^
Again, it was very unfortunate (for the defense, as well as for the
orderly process of law) , I think, that Arnold introduced the racial or re-
ligious issue into his summation. It had not come up during the exam-
ination of witnesses; it was not interjected into the trial at all until
Arnold made the statement that Frank would not have been indicted
at all except for his religion. There was nothing that had been said or
intimated during the trial to justify such an assertion. Moreover, it came
with very bad grace from Arnold who, throughout his summation, almost
constantly referred to Conley as a "dirty, black nigger,". "lying nigger
scoundrel," and "lousy nigger." It forced Dorsey into the position of say-
ing what is manifestly true, namely, that the job of the police and of
himself would have been much easier if evidence had been procured
justifying an indictment of Conley for the murder instead of Frank,
inasmuch as Conley was a penniless, friendless, ignorant and shiftless
Negro, often drunk and disorderly and with a chain-gang record, where-
as Frank was a man of means and standing in the community, with
wealthy and powerful friends. It also forced Dorsey into the position
of denying Arnold's insinuation and of paying an eloquent tribute to
Frank's ancestors, saying they were civilized for ages while his own
ancestors were still eating human flesh and that they had produced the
religion professed by most of the peoples of the western world, including
those in the courtroom.
Arnold's injection of religion into the case was very unfortunate. I
think; for it impugned the motives and the integrity of the police, of the
coroner's jury, of the grand jury (of which five members were of Frank's
religious faith), of the prosecutor arid of the court itself. It was, in
effect, a challenge to the jury to free his client — or otherwise bear odium
of religious prejudice sufficiently strong to send an innocent man to the
gallows. A jury deeply conscious of its responsibility and priding itself
upon the purity of its motives and upon its ability to judge the evidence
fairly and without prejudice— which every juryman must feel as a point
of honor, whether that feeling is justified or not — would, I think, resent
Arnold's wholesale and gratuitous insult to the authorities of Atlanta.
Psychhlogically it was, I think, an extremely dubious line of attack. I
believe that Arnold believed he was. acting in his client's best interests
but that, unconsciously, he was swayed by intimations of his client's
guilt. I believe he was so certain his client would be found guilty that
he was concentrated upon the strategy of appeal and thereby was un-
aware of the opportunities Dorsey offered him to demolish the state's
It seems likely to me that, even in his strategy of appeal, Arnold
was unconsciously led into error. At the conclusion of the trial and before
the judge had charged the jury, Arnold asked that the judge retire the
jury because he had an application to make. When the jury was retired,
Arnold's application was.not for a directed .verdict or for a retrial on the
ground that insufficient evidence had been produced to warrant the
jury's consideration but for a writ of error. His contention, thus was not
that the evidence against the defendant was meager and inconclusive
but that conduct of the trial had been unfair and prejudicial to the de-
fendant. Whereas he had hitherto appeared to be prosecuting one of the
state's chief witnesses for murder rather than defending his client of the
charge, he was now accusing the court of improper conduct of the trial
instead of accusing the state of having produced insufficient evidence.
Judge Roan considered the five points of alleged error while the
jury was kept waiting. He called the bailiff who had been in charge
of the jury to testify concerning the allegations and he himself the
sheriff and the bailiff submitted to cross-examination. Thereupon
he formally overruled the motion but told counsel for defense to pre-
pare briefs and submit witnesses and apply for a writ of error, which
he would consider after he had charged the jury and after the jury had
performed its duty.
This was on August 25. In the' application for a writ of error to the
Georgia Supreme Court this report of the incident was submitted:
MR. ARNOLD asked the jury be retired as he had an application he
did not desire the jury should hear.
The Court acquiesced and the jury retired.
MR. ARNOLD: I make a motion for a mistrial and I wish to name
the facts on which to make it. We wish to prove every fact included in
this motion unless the court already knows it. We base our motion
on the following facts:
(1) That counsel for defense requested that the court room be
(2) That the audience applauded when he court refused to rule out
evidence relating to women.
(3) That on Friday, August 22, when the court had adjourned for
the day, when the jury was 200 feet north of the courthouse on. South
Pryor Street a large crowd cheered the solicitor, crying "Hooray for
(4) On August 23, when the jury was only 100 feet away, in the
German cafe, a crowd gathered in front of the court house and cheered
Solicitor Dorsey when he came out.
(5) That on the last day of the trial a large crowd of women had
taken seats before the court opened; that when Solicitor Dorsey entered
the courtroom he was cheered; that the jury in a rdom only 20 feet
away must have heard this cheer.
(6) That these demonstrations tended to coerce and intimidate the
jury and influence the jury's verdict.
Arnold added, "The behavior of the spectators throughout this trial
has been disgraceful."
Judge Roan called the bailiff and the sheriff and interrogated them
on the points charged by Arnold. Both denied that they heard any
cheers for Dorsey, or heard Dorsey's name mentioned by spectators at
the trial, or heard applause for Dorsey as he entered the courtroom
that corning. Judge Roan added to this testimony by saying he heard
some noise but said it was the sort of noise inseparable from any trial
that aroused any public curiosity and he also declared that he did not
hear any mention of Dorsey's name.
Nevertheless he accepted application for a writ of error to be con-
sidered after the trial was concluded. Then he ordered the court room
cleared. (Incidentally, Justice Holmes of the United States Supreme
Court, was misinformed on this, as well as upon other points, in his
dissenting opinion, written nearly two years after the trial, when the
Supreme Court, in full bench, dismissed the appeal for a new trial for
the third time. He wrote: "When the verdict was rendered and before
more than one of the jurymen had been polled there was such a roar of
of applause that the polling could not go on until order was restored."
The courtroom had been cleared on the last day of the trial. A
crowd had gathered in the street. They cheered the verdict but they
did not know of the verdict until the poll was over. Moreover, even if it
had occurred in court, which it hadn't in the case, applause of spectators
is usual after every trial, whether the verdict is for or against the defend-
ant; it was terrific when Lizzie Borden was found not guilty; it was terrif-
ic when Hauptmann was found guilty; it was terrific when the Mrs. Hall
was cleared of the charges of murdering her husband and his paramour;
and it was terrific when Ruth Snyder and Judd Grey were found guilty.
And applause after a verdict has been rendered cannot be properly said
to have coerced or intimidated a jury while it was still considering a
Judge Roan charged the jury in 'a little masterpiece of impartial
judicial instruction of a jury as to its function and obligation.
The jury retired at 12:45 p.m., August 25, 1913 and brought in a
verdict of Guilty at 4:55 p.m. Meanwhile, with the consent of counsel
for defense, the defendant was kept guarded in his cell and was not
present in court to hear the pronouncement. This action was taken as
a measure of protecting the defendant's person in case a verdict of not
guilty or a disagreement ensued. It was agreed by the court, defense
counsel and the state, that some danger of violence lay in acquittal or
disagreement. This was alleged to be a denial of the prisoner's consti-
tutional rights, in the appeal, but all courts of appeal held that the
allegation was not justified in that the prisoner's absence from the
courtroom was by consent of his counsel.
Almost immediately after the jury rendered its verdict, the defense
counsel, Arnold and Rosser, gave out the following statement to the
"We deem it not amiss to make a short statement, as the attorneys
for Leo M. Frank, to the public. The trial which has just occurred and
which has resulted in Mr. Frank's conviction, was a farce and not in any
way a trial. In saying this we do not make the least criticism of Judge
Roan, who presided. Judge Roaon is one of the best men in Georgia and
is an able and conscientious judge. The temper of the public mind was
such that it invaded the court room and invaded the streets and made
itself manifest at every turn the jury made; and it was just as im-
possible for this jury to escape the effects of public feeling as if they
had been turned loose and had been permitted to mingle with the people.
In doing this we are making no criticism of the jury. They were only
men and unconsciously this prejudice rendered any other verdict im-
possible. It would have required a jury of stoics, a jury of Spartans,
to have withstood the situation. The time ought to come when this man
will get a fair trial and we profoundly believe that it will. The final
judgment of the American people is a fair one. It is sometimes delayed
in coming but it comes. We entered this case with the profound convic-
tion of Mr. Frank's innocence. The result has not changed our opinion.
Every step of the trial has intensified and fortified our profound con-
viction of his innocence."
This statement was an unusual one for defense attorneys to make
after the conclusion of a case they have temporarily lost. For much less
cause editors and lawyers have been held in contempt of court, fined
and jailed. It should not be taken too seriously by the reader for the
simple reason that it was obviously designed to influence any future jury
that might be confronted with the case antf to influence the judges
who would be called upon to review the motions for appeal. The state-
ment is cited here in connection with the six points of the defense
counsel's contention for a new trial, because later allegations of improper
and prejudicial procedure during the trial grew more and more exag-
gerated by the year.
If there had been more grounds for complaint against the conduct
of the trial or more evidence of efforts to coerce or intimidate the jury
than those named in the six points of contention of mistrial, the attor-
neys for the defense would have been neglectful of their client's in-
terest if they had failed to cite these grounds. Statements by commen-
tators on the trial, such as "mobs surged in and out of the courtroom,
intimidating both witnesses and the jury," that "almost every man in
the audience reached for his gun," when Mary Phagan's mother scream-
ed and burst into tears on being shown the garments of the dead girl;
and that "the judge permitted mob rule," were utterly without founda-
The trial, indeed, excited comparatively little attention for a mur-
der trial. It was attended by none of the courtroom antics and demon-
strations of morbid curiosity such as figured at the Hauptmann, Hall-
Mills and Snyder-Grey murder trials. The crowd waiting outside of the
courtroom for the jury's verdict was comparatively small for a sensa-
tional murder case.
But, during the months to follow, the case, which did not, intrinsic-
ally, differ from any other trial for rape and murder became first a na-
tional and then an international cause celebre, reminiscent of the Drey-
fus affair in the public consciousness. During the investigation of the
murder and the trial itself the case had excited no attention whatever
in Northern newspapers. News in New York newspapers during that pe-
riod for instance, was concerned with the war clouds arising from the
German Kaiser's martial antics in Europe, Harry Thaw's escape from
Mattewan, the impeachment of Governor Sulzer, the anti-alien land
ownership law of California and murders nearer home. Very little at-
tention was paid the case even in the South, except in the state of
Georgia, until nearly a year after the trial and conviction.
What had started as a paid advertisement in Atlanta newspapers
during the trial became, after a year, during which Frank's case was
being appealed from higher court to higher court, a tremendous emo-
tional issue, arousing fanatics on both sides of the issue to a hysterical
pitch. It brought forth all the sleeping animosities between the North
and the South that had been quiescent, more or less, since the Civil War.
Northern newspapers editorially denounced the South and the State of
Georgia in particular and rabble-rousers in the South responded with
scurrilous vituperation against the North. Little, if any attention, was
paid to the evidence upon which Prank had been convicted. It was an
emotional debauch which, as Mark Sullivan wrote in his history of Our
Times, Vol. 5: "The Frank case and the Becker case were (to the 1910's)
what the murders of Stanford White and Governor Steunenberg were to
the 1900's and the Bobby Franks and Hall-Mills murders were to the
The core of this emotional whirlwind came about during the trial.
Friends of Frank in a religious society, of which Frank was president,
drew up an advertisement which argued that Frank was being prosecuted
not because he was guilty but because of his religious faith.
When the advertisment was shown to Joseph Dewey Gortatowsky,
then managing editor of the Atlanta Constitution, the most influential
newspaper in the South, and himself an orthodox member of Frank's
religious faith, Mr. Gortatowsky strongly advised the committee not to
publish the advertisement. He reminded them that five members of the
grand jury which had indicted Frank were of Frank's own religious
faith. He said that they had no evidence upon which to base their
assertion and that no question of race or religion had been raised by
the prosecution and that it would have made Solicitor-General Dorsey's
job much easier if the grand jury had indicted Conley instead of Frank
because Conley was not only a Negro and thus disfranchised and de-
classed, but a Negro with a police record, dissolute, shiftless and without
friends or money. He said the advertisement would inflame morons and
create prejudice where no prejudice existed, inasmuch as it accused a
reputable and respectable state official, Hugh M. Dorsey, of gross derelic-
tion of duty, and that the advertisement, moreover, attempted to try the
case and free Prank before the jury had heard all the evidence. Mr.
Gortatowsky intimated that the advertisement might prove inimical to
their friend's interest.
But the committee of Frank's friends went ahead and inserted the
advertisement anyhow. The highest priced and the most famous crim-
inal lawyers in Atlanta, and perhaps in all the South, Rosser & Arnold,
had been retained and Frank was a man of very limited means. The
original committee of Frank's co-religionists became the Leo M. Frank
Defense Fund Committee of which Herbert Haas, attorney for the Na-
tional Pencil Company, was chairman. This committee, after Frank's
conviction, began to solicit funds on a national and international scale,
alleging that Frank was a martyr condemned by religious prejudice.
Charges of racial or religious prejudice is something no sane and
just man can face with equanimity; he is ready with all his means and
resources, however limited, to fight it. Therefore contributions from
Catholics, Protestants, Jews, atheists and agnostics began to pour in to
the Frank Defense Fund Committee. Senator Borah made political cap-
ital of it; prominent men in many walks of life announced that Frank
was being made a martyr to prejudice. Mass meetings were organized in
remote centers where nothing conclusive could be known about the
case; "Georgia justice" was denounced, and contributions were collected.
Contributions poured in from Honolulu, Bombay, Oshkosh and Paterson,
New Jersey as well as from other cities, small and large, all over the-
globe. More than $250,000 were said to have been collected.
In May, 1914, more than a year after the murder, William J. Burns,
head of the famous William J. Burns Detective Agency, entered the case
as an investigator for the Frank Defense Fund Committee. He entered it
at an inauspicious moment. While the investigations concerning Mary
Phagan's death were being conducted, Frank, had discharged Herbert
Scott, manager of the Atlanta branch of the Pinkerton National Detec-
tive Agency, whom he had engaged on the day after the murder to track
down the criminal responsible for Mary's death.
The reason for Frank's dismissal of Scott was because Scott was
doing what the state laws of Georgia require a private detective agency
to do — namely, to co-operate with the police and give them full reports
on the results of the agency's investigations.
After a few days of investigation in Atlanta Detective Burns declared,
in a statement to the press, that it was obvious that Frank was not guilty
and that Conley was. He had secured affidavits, he alleged, from wit-
nesses who declared they had been coerced into making false affidavits
against Frank. He declined to share the results of his investigations
with the Atlanta police about whose competence he was grossly insulting.
The police thereupon closed the Burns Detective Agency in Atlanta
and prohibited him and his operatives from continuing work in the city.
A city ordinance in Atlanta gave them the right to do this because, as
stated before, the ordinance requires private detectives to co-operate
with the police. They revoked the Burns license.
Burns thereupon visited various cities in the North in behalf of the
Frank Defense Fund Committee, where he gave to the press his version
of the murder, which was this:
"Conley, drunken and hard up, was hiding behind the boxes at the
foot of the stairway when Mary Phagan, who had drawn her pitiful little
wage, went down on her way out of the building. She had her money in
her hand. She decided to go to the basement and leaned her parasol
against the wall before starting down the steps. Conley then struck
her, not with the intention of killing her but of robbing her.
"After he had struck her, he heard some one call, as he confessed to
Annie Maude (his paramour) and then pushed her (Mary) through a
a square hole, a hatchway, nearby, which led from the first floor to the
"It was this fall and not from the blow of any weapon that Mary
Phagan received the great cut on her neck which killed her. Nothing in
the factory would have inflicted just that wound save the sharp cornered .
log which lay at the foot of the ladder. Bruises on her body were such as
would have been made by the ladder as she struck against it in the
course of her fall."
Detective Burns' theory is simple and direct and it may have com-
plete validity. Many hundreds of thousands of people at the time be-
lieved it. In Atlanta and elsewhere in the South, however, there were
thousands who just as passionately believed that Detective Burns had
concocted his theory a whole year after the event by huge subsidies of
cash from the Prank Defense Fund and with very little consideration of
the evidence offered at the trial.
At the instance of newspaperman William Randolph Hearst, New
York Supreme Court Judge Clarence J. Shean went to Atlanta to study
the records in the spring of 1914. His conclusion was "there is no legal
evidence whatever upon which a reasonable hypothesis of Frank's guilt
may be based."
Trial Judge Roan, who sentenced Frank to be hanged, stated (ac-
cording to a newspaper interview with him) that he was not convinced
by the evidence that Frank's guilt had been proved but that his function
was not to dispute the verdict of the jurors but to inistruct them in
their duties and obligations and pronounce judgment according to their
Ward Greene, now a Hearst executive, was a reporter who covered
the trial for the Atlantic Journal and afterwards wrote a novel, "Death
in the Deep South," based on the case. Like other newsmen who covered
the trial, he has never been able to form an opinion about Frank's guilt
or innocence. All he can say is "I don't know."
5. HISTORY OF THE APPEALS
That Judge Roan was not hasty or ill-considered in his decisions is
evident from the fact that he deliberated for more than two months
before denying the motion for a new trial, on October 31, 1913.
The case was then carried to the Supreme Court of Georgia, which
considered the testimony in the matter of the original charge of trial
error and a digest of the trial, together with the summations and over-
ruled the motion for a new trial in a decision handed down on February
17, 1914. Frank thereupon was re-sentenced to hang April 17.
On April 16, 1914, an extraordinary motion for new trial was filed
in the Georgia Supreme Court, which delayed the execution of the
On November 14, the Supreme Court of Georgia denied a new trial.
November 18, the Supreme Court of Georgia refused a writ" of error,
holding that the evidence presented by defense did not- show that the
lower court had erred in conduct of the trial.
On November 23, Justice Lamar of the Supreme Court of the United
States refused a writ of error.
On November 25, Justice Holmes of the Supreme Court of the United
States also refused a writ of error.
On December 7, the full bench of the Supreme Court of the Utaited
States heard the petition and refused a writ of error.
On December 7, Frank was again sentenced to hang January 22, 1915.
On December 21, Judge W. T. Newman of the United States District
Court of Georgia refused the defense a writ of habeas corpus.
On December 28, Justice Lamar of the United States Supreme
Court granted an appeal and a certificate of reasonable doubt to the
United States Supreme Court.
On April 19, 1915 the Supreme Court dismissed the appeal, Justice
Hughes and Holmes dissenting. Justice Holmes, after enumerating the
defense's allegations of hostility to the petitioner on the part of specta-
tors at the trial (allegations which were exaggerated and not included
in the original motion for a new trial) stated: "Upon allegations of this
gravity the petition ought to be heard." The majority opinion held that
the evidence of improper trial procedure was not sufficient or convincing
enough to warrant the Supreme Federal Bench in passing adverse judg-
ment on the State Supreme Court of Georgia.
On April 1915 the case went back to the Supreme Court of Pulton
County, Atlanta, Georgia, in which it originated. Judge B. H. Hili had
succeeded Judge Roan. He heard an extraordinary motion for a new
trial and denied it on April 22. Frank again was sentenced to hang
April 25. Execution was stayed by Governor John Slaton pending a report
on the case by the Prison Commission of Georgia. The commission sub-
mitted a divided report to the governor on June 9.
On June 21, 1915, nine days before the expiration of his term of of-
fice, Governor Slaton commuted Frank's sentence to life imprisonment.
A mob gathered before the governor's mansion after news of this action
by the governor was announced. The state militia was called out and the
mob was dispersed. Governor Slaton permitted himself this comment
upon the demonstration of the mob:
"Every city has its riff-raff and Atlanta's mob is composed of men
whose wives support them by running boarding houses, whose children
are in the factories instead of in school and who loaf on corners talking
about the inequalities of opportunity and the inequalities of the law in
Governor Slaton knew that his action meant his political death.
Nevertheless, he said that as long as he had a reasonable doubt about
the guilt of Frank, or of any other man, his conscience would not permit
him to allow that man to be put to death if he could prevent it.
Things quieted down. Frank was incarcerated in the Georgia State
Prison in Milledgeville. Then a month later a life termer in prison cut
Frank's throat with a butcher's knife and Frank hung between life and
death for six weeks. Then early in the morning of August 25, 19151 a
mob, variously estimated at from fifteen to 150 persons, broke into the
prison, disarmed the guards, held the warden captive, and kidnaped
Frank. They took him to Marietta, a town in which Mary Phagan's body
had been buried in the family lot. They hanged Frank to a pine tree
near Mary's grave and, in a brutally drunken orgy, mutilated Frank's
body before a few humane local citizens could reach and take it to am
undertaking establishment in Atlanta.
This lawless and horrible action inflamed decent citizens everywhere
and demand was made in Atlanta that the members of the mob be ap-
prehended and brought to justice. But nothing ever came of the investi-
gations or of official efforts to punish the criminals.
6. WHO MURDERED MARY PHAGAN ?
I propose herewith to show that the conduct of the case, both by
the prosecution and by the defense, was, on the basis of the evidence,
curiously inept. After long and profound study of the summations of
Solicitor Dorsey, for the state, and of Reuben Arnold, for the defense,
I have been unable to disabuse my mind of the suspicion that Dbjrsey
was animated by ineradicable feeling that the man he was called upon to
prosecute might be innocent, and the Attorney Arnold was animated by
an ineradicable feeling that the man he was defending might be guilty.
So long as Solicitor General Dorsey had no proof to bolster his
feeling, he ctfuld not do what Homer Cummings did later on— turn
around and work to free the man whom he was called upon to prosecute.
He was in duty bound to prosecute the case to the best of his ability,
no matter what his private intimations might have been, unless he had
actual and convincing proof of Frank's innocence, or that the evidence
against Prank was false. Similarly, no matter what Mr. Arnold's secret
intimations might have been, he was in duty bound to defend and
protect his client with all the resources at his command.
I maintain that, on the basis of the evidence, it is impossible to
determine who killed Mary Phagan; that Prank may have killed her;
that Conley may have killed her; but that it is also equally plausible
that neither one of them knew anything whatever about the murder
and that Mary was killed by some person who was never even suspected
of the crime.
For, when the evidence is minutely and carefully examined, it will
be noted that there was no evidence produced whatever, beyond Conley's
own word for it, that Conley was near the factory at any time on Satur-
day, April 26, 1913, the day of the murder. On the last day for the
examination of witnesses, two witnesses showed up "providentially at
the last hour" (as Assistant Solicitor General Hooper put it) who, the
state believed, would testify that they had seen Conley at the factory
on the morning of the murder. In fact, in his summation to the jury,
Solicitor Hooper erroneously stated that these two witnesses had so
testified. Hooper's statement on this point, curiously enough, was not
challenged by either Rosser or Arnold, who could have objected that no
such testimony was offered.
These two witnesses, O. Tillander and E. K. Graham merely testified
that they saw Conley talking to Frank in front of Montag's office at
about 9:30 on that Saturday morning. On cross-examination, they both
denied they were positive that the Negro they saw talking to Frank was
Conley; they merely thought it might be Conley, because the Negro
"looked a little like Conley." And even if that identification had been
certain, there were two significant points about it which, strangely
enough, the defense overlooked: (1) The fact that Conley was seen
talking to Frank several blocks away from the factory is no evidence
that Conley went near the factory or to the factory, (2) if Conley was
talking to Frank at 9:30 on that Saturday morning in front of Montag's,
Conley"s testimony at the trial was a lie. In his fourth signed states
ment to the police Conley said he had met Frank in front of Montag's
about 10 that morning and then had gone to the factory; but in his testi-
mony on the stand, Conley changed his story in that regard and insisted
that he had arrived at the factory at 8:30 a.m. at the same time Frank
arrived there. Not one of the witnesses among the 300 testifying on
both sides mentioned having seen Conley!
The main line of the argument of the defense, as well as of the
prosecution, presumed the presence of Conley at the factory. The de-
fense argument was that Conley murdered Mary Phagan and that Frank
had nothing to do with it and knew nothing about it. This line of rea-
soning, I think, was a mistake. It is understandable; it enabled the de-
fense to construct a plausible theory as to just how Mary met her death
^-that Conley, half -drunk and hard up. was waiting behind some boxes
on the first floor for Mary to come down with her pay envelop©, that
he garroted her with a cord and dumped her body into the hatchway
to the basement, causing thereby the gash and other wounds which were
incurred as she fell down the hatchway striking her head against the
iron ladder, that he took her handbag (which was never found) , sneaked
into the basement after Frank had gone, wrote the notes and escaped
out of the basement door.
But Conley wasn't on trial for murder; Frank was. A wiser procedure
would have been for the defense to seek to prove that Conley was not
at the factory on the fatal Saturday, either by witnesses testifying to
his presence elsewhere or by the negative proof of showing that there
was no evidence, beyond his own statement, that he was there. People
were going in and out of the factory nearly all day and no one saw mm
there. If Conley wasn't there, the state's whole case (as presented)
against Franks falls to the ground. The other elements would have no
cogency, such as the testimony of Monteen Stover. If it was assumed
that some other person had sneaked into first floor hallway after 11:15
when Halloway, the day watchman left, leaving the door open— some
one who had followed Mary and had waited in the hallway to waylay
and rob her, or attempt to rape her— then there would have been no
chain of circumstantial evidence to weave around Conley's fantastic
and wavering story.
It is within the bounds of plausibility that the police, distraught
over their inability to find evidence to place Conley at the factory on
Saturday and thus work up circumstantial evidence that he committed
the crime, said to Conley, after they had secured some damaging, buft
not conclusive, evidence against Frank, something to this effect: "See
here, you black nigger scoundrel, do you want to hang or do you
want to do a year's stretch on the chain gang? It is the one or the
other. Tell the story we want you to tell and all you will get is a year on
the chain gang as an accessory. Keep on denying that you were at the
factory the day the girl was murdered and you will hang for the murder."
Faced with such an alternative, it is easy to account for the changes in
Conley's original story, changes so numerous and so radical that he could
not remember them himself and therefore mixed them up on the
stand. Detective Scott's testimony for the state practically acknowledged
this: He said that Conley in the process of revising his story, was told
over and over his story didn't fit until Conley finally told a story that
did fit— after, said Scott, "we cussed him quite a bit."
To me the most damaging point against Frank was not his denial
that he knew Mary Phagan by name, nor his statement that he re-
mained in his office from 12 noon until 12:45 without stirring out of it,
except perhaps to go fo the toilet, which he admitted he might have done
without remembering that he had done so. To me the most damaging
point in his statement to the jury was what seems to have been a de-
liberate effort to fix the time of Mary Phagan's arrival at his office as
"before 12 o'clock thus falsifying his original signed statement to the po-
lice. This was an effort, apparently, to make his 12-12:45 story stand up.
His statement on this point was:
"From ten to fifteen minutes after Mrs. Freeman and Miss Hall
left, this little girl, whom I afterwards found to be Mary Phagan
entered my office and asked for her pay envelope."
He had already fixed the time of the departure of Emma Clark
Freeman and Corinthia Hall at 11:45 a.m. They had testified that that
was the time they left Frank's office. Other witnesses had corroborated
that testimony. "Ten or fifteen minutes" after thgy left would fix
Mary's arrival at or before 12 noon. That would also have her come and
gone before Monteen Stover arrived. But it omits to take into considera-
tion that Miss Hall, Frank's stenographer, did. not check out before 12:02
and that Miss Hall did not see either Mary Phagan or Monteen Stover.
In his statement to the police Frank had fixed the time of Mary's ar-
rival at about 12:10.
Now, if Frank had been as open and above board in his statement to
the jury as he apparently wished to appear (and he was remarkably clear
and implicit about such minor details as Washing his hands, lighting a ci-
garette, drinking a glass of soda, and so forth) it is curious that he should
apparently deliberately convey a false impression about the time of
Mary's arrival. If he had nothing to conceal there was no point in
trying to make it appear that Mary had arrived before he had previously
said she did.
For, if his conscience was clear, he had nothing really to worry about
—if he or his counsel had been alert. The contention of the state was that
while Monteen Stover was waiting in his office, he, Frank, was in the
metal room where he was engaged in the rape and murder of Mary
Phagan. But the state's own witnesses established that Monteen arrived
at Frank's office at 12:05 or not later than 12:07% and left at about 12:10,
whereas state witnesses iixed the time of Mary's arrival as at not earlier
than 12:12. Monteen Stover thus had come and gone before Mary ar-
rived! How the defense counsel missed that point and did not in-
sist upon it, inasmuch as the state made so much of its contention that
Frank did not know that Monteen Stover had been to his office and that
the reason he did not know it was that he was at that time attacking
Mary in a room across the hall, is something I cannot figure oujt. One
of the most important contentions of the state against Frank was allow-
ed to go unchallenged.
Superficially one of the most incriminating statements that Frank
made, and one of which the state made great capital, was that he did
not know Mary Phagan by name. But I ask the reader to make a test
of recalling. Is it not true that you know or have known, quite a number
of people by sight and not by name? Is it not also true that you have
observed some of them in situations of intimacy with persons you know
by name as well as by sight? For myself, I have worked in a number
of offices where I have known a great many girls and women by sight
and have never known them by name. I have nodded, smiled, greeted
and even talked to them and known what their work consisted of and
have even observed and /or heard whom they were on intimate terms
with, or carrying on affairs with, without my ever knowing what their
names were. I have known the first name of some but not their last,
names. Right now, I look across the street at a young couple in an
embrace in the entrance of an apartment building. I know the boy's
first name and that he works at a radio repair shop nearby. I know the
girl by sight but I do not know her name or anything else about h!er.
It was perfectly possible for Frank to have known that Gantt was on
intimate relations with one of the machine girls in the factory and
that he heard gossip about "that little girl" and Gantt. He may even
have known her first name, without knowing her last name. It was
not alleged by anybody that Frank called her "Miss Phagan" or "Mary
Phagan." Some said he called her "Mary" but that is no assurance he
knew her last name.
But why did neither Frank nor defense counsel think of bringing up
this very common human experience? It would have demolished one
of the state's most damaging points.
Did this escape the defense because Frank was lying when he said
he did not know Mary by name and because he was lying for a reason
that is plausible in another hypothesis I have outlined further on?
7. ASPECTS OF THE TRIAL
The exhibits at the trial were listed as follows: (a) The cord found
tied around the victim's neck, (b) the piece of white cloth, stained with
blood, which was also found around the victim's neck, (c) four chips
of wood, with red splotches on them, chipped from the second floor of
the factory, in front of the ladies' dressing room, (d) a shirt allegedly
found at the bottom of a trash barrel at Newt Lee's house; very bloody
on both sides and high up in the sleeves, (e)the scratch pad on which
the notes allegedly were written, (f ) the two notes allegedly found under
the head of the victim, (g) an affidavit signed by Mineola McKnight,
swearing that Frank was very nervous when he came home for lunch
on Saturday, that he did not eat lunch and returned almost immediately
to the factory; and that Frank was drunk on Saturday night and
threatened to kill himself and would not allow his wife to sleep in the
same bed with him. She repudiated this affidavit on the stand, saying
that it was untrue; that the police had forced her to sign it after
threatening her at the police station and before allowing her to leave;
that she signed the affidavit without reading it just to be released from
Conspicuously absent from these exhibits were:
(1) The mesh bag, which Mary Fagan took with her to the factory
on the morning of April 26.
(2) Mary's pay of $1.20, plus any other change she may have had,
arid the envelope in which her pay allegedly was handed to her.
(3) The cloth or sack in which Conley alleged he wrapped the body
of Mary Phagan before taking the body from .the second floor to the
These items are of the greatest importance precisely because they
were never found.
It can reasonably be assumed that no such sack ever existed except
in Conley's imagination. For there was no more reason for Conley or
Frank to destroy or to hide the sack than there was for their destroying
the other effects found in the basement with the body, such as the
parasol, the hat and the ribbon.
Because no blood was alleged to have been found in the hallway or in
the elevator in which the body was allegedly taken from the second
floor to the basement, the existence of the sack in which the body was
supposed to have been wrapped may have been suggested to Conley by
the police to forestall any inquiry as to why there was no blood stainjjs
found in the elevator or in the hallway. (It is obvious from the testimony
of Detective Scott that, as Conley kept on changing the story, the po-
lice persisted in telling him that his account "did not fit," that is, it did
not conform to the other evidence the police had, upon which to base
a case against Frank; and that finally, no doubt with promptings
by the police, Conley did tell a story that "fit.")
But, inasmuch as there was enough blood from the gash at the base
of the victim's skull thoroughly to mat the victim's hair, that Wood
probably would have oozed through the cotton cloth of the sack and
stained the back and shoulders of the shirt or coat worn by Conley when
he allegedly lifted the body (in the sack) to his shoulders, from which
body allegedly fell.
When Conley told the police, on May 29. that he had lifted the body
and it had fallen to the floor, where, according to the state, the fall pro-
duced a fan-shaped splotch of blood, the police were signally thoughtless
in not proceeding immediately to inquire of Conley whether he was in his
shirt-sleeves or wearing a coat at the time. They also should have
searched his house for the garment he wore in order to examine it for
The finding of a bloody shirt in Newt Lee's trash barrel was the
third thing that caused Frank's own specially employed Pinkerton de-
tective, Harry Scott, to suspect Frank of the murder. As already stated,
Scott saw no reason for Frank's hiring a detective, if he was innocent,
until the police had failed to find the murderer; if guilty the action <tf
hiring Scott was based upon the assumption that Scott would not sus-
pect his employer and would be diligent in leading the police search else-
where. What deepened Scott's suspicion was Frank's answer when, un-
known to Frank, it had been learned that Monteen Stover had gone to
Frank's office at about 12:10 on the afternoon of the murder to get her
pay and, finding no one in Frank's of fuse, had left. Frank, in his signed
statement to the police averred that he did not stir out of his office from
noon until 12:45.
Scott pressed him about this statement, hoping Frank would remem-
ber some errand which took him out of the office at that time. But
Frank was firm on the point. Scott asked, "Are your sure?" Of course
Scott did not tell him why he was asking him that question. Scott felt
that Frank was persistent in his negative because Scott was trying to fix
in Frank's mind this important testimony so that Frank would not be
shaken on it. His purpose was exactly the opposite; he hoped Flrank
would say he was out of the office for a few miwites around 12:10, in
the washroom or downstairs. Frank's replies convinced him Frank was
The third thing that deepened Scott's suspicion of his employer was
.the finding of the bloody shirt in Newt Lee's trash barrel. Newt Lee
had blandly acknowledged that he had owned a shirt of the material
of thfe one found in his trash barrel, but that was two years ago, and
he did not recognize it as one he had recently owned. Scott produced a
piece of the shirt, without telling where it came from, and asked Frank
if he had ever owned a shirt made of that material. Frank promptly
replied that he hadn't. His reply was a little too prompt and firm; the
reply would have been less suspicious if Frank had replied that he owned
shirts of that material or that he may have once owned such a shirt for
the material was a very common one for shirts.
It will be recalled that on the Monday following the murder, after
he had undressed at police headquarters so that the police might in-
spect his underclothing and examine his body for marks, Frank himself
suggested that the police accompany him back to his house and examine
the contents of his laundry bag, which he said had not been emptied
since before the murder. It was up to the police to make that suggestion,
not up to Frank. The suggestion was suspiciously pat, as though Frank
had overlooked nothing that would clear him of suspicion. Of course,
nothing suspicious was found in Frank's laundry bag. After Frank
had directed them to it, it would have been very remarkable if any-
thing suspicious had been found therein. But, the absence of a blood-
stained shirt in Frank's laundry bag is not evidence that Frank did not
wear, or bring, home a blood-stained shirt on Saturday, April 26.
The thorough examination of Frank's entire body for bruises or
scratches at the police station that Monday morning was prompted by
Defense Counsel Arnold's statement, "The idea that my client attempted
to assault Mary Phagan that afternoon is ridiculous. After such an .en-
counter, his face and hands would be covered with bruises and scratches.
Look at him! There is not a mark on him."
That there was a mark on Frank is no proof whatever (in spite
of Mr. Arnold's statement) that Frank was not guilty of every charge
that was lodged against him. Nor would the presence that morning of
several scratches which he could not have satisfactorily accounted for
been any proof whatever that Frank was involved in the murder of
The police always attach a great deal of importance to the presence
or absence of blood stains at the scene of a crime. But, as Edmund L.
Pearson has pointed- out in Studies in Murder, blood stains even in a
particularly bloody murder can be very thoroughly washed from the
person of the murderer in less than thirty seconds. And, moreover,
blood is rarely splattered freely about even in axe or hammer murders.
When the murderer (who was Lizzie Borden, in Pearson's opinion,
though she was freed of the charge) chopped the faces of Mr. and Mrs.
Borden furiously and repeatedly with an axe, blood flowed freely from
the wounds, but did remarkably little splattering and then only within
a radius of a few inches of the blows.
If Mary Phagan's body was taken, in a sack or without being
wrapped, from the second floor, to the elevator and thence to the base-
ment and laid out there on the floor, immediately, or very soon after the
murder, the chances are that whoever lifted or carried the body, whether
in a cotton sack or not, got some blood stains on his person and on his
clothing. The stains on his hands could have been easily and quickly
removed; the stains on his clothing, if any. could not have been. Bujt
it was perfectly possible for Frank, Conley, Lee or any one else to have
got a shirt very bady stained with blood in the commission at Mary
Phagan's murder and to have walked through the streets, lingered
at bars or soda fountains and talked to people without displaying the
stains or creating suspicion. All that would have been necessary would
have been for the murderer to put on a coat and button it; and, if the
shirt collar were bloody, to turn the collar in.
Lee blandly acknowledged that he had owned a shirt of the same
material as that of one found in his trash barrel—but that he had
owned it two years ago! This might have been an inspired bit of cunning
oh Lee's part. A shirt would not be likely to have remained in the trash
barrel for two years. Thus, in confessing he had once owned a shirt
like the one that was found, he might have been exceedingly dtein-
genuous. So Irank would he seem to be, from the confession, that the
deduction would normally be that the shirt was not his at all but had
been planted there since the murder.
That was what happened. The shirt was produced in evidence at
the trial, but the reason for producing it was never clear. No one took
advantage of its presence. The question of the bloody shirt was stu-
diously avoided by both the prosecution and the defense. Both sides
assumed that the shirt had been planted; both sides apparently be-
lieved that the shirt had been planted there by the police at the time
they were strongly of the suspicion that Lee was the murderer.
But, as Edmund L. "Pearson has so firmly and rightly stated, the
police are never quite as studied, blundering, conscienceless and malig-
nant as writers of mystery and detective stories try to make out. The po-
lice are human beings and they often make mistakes but they usually
are conscientious in their sworn duty. They don't go around planting
clues, for the simple reason that, contrary to detective story fiction and
public belief, the police are usually plagued by a multiplicity of "clues"
rather than hampered by a lack of them. If they were foolish enough
to complicate their job by planting a bloody shirt, they at least would
take care that the shirt should be one that could be positively identified
as belongong to somebody. Otherwise, they would simply have a bloody
shirt on their hands and nothing to connect it with anything.
But this planting business is the sort of thing which might very
easily occur to the layman, especially to the reader of the more care-
lessly written detective stories. Thus it might seem like a bright idea
to the guilty person, who wanted to fix the crime on some one else;
but it would not be tfoe sort of thing a good cop or an experienced de-
tective would think of doing.
The shirt was found by City Detective Black and Pinkerton Detective
Scott. They never suspected the police of planting it there; but, when
they and the police had satisfied themselves that Lee had no direct*
connection with the crime, their first deduction (and a sensible one) was
that it might have been planted there by Conley or by Frank.
Scott was strongly of the suspicion that the shirt found in Lee's
trash barrel belonged to Frank! But a suspicion or a belief is not ad-
missable as evidence; and, moreover, he had no definite theory about
how, if it was Frank's shirt, it had got there. Lee lived in the Negro
section of town and Frank's presence in that neighborhood at any time,
day or night, would almost certainly have attracted attention; for the
presence of any white man, except the police, in the Negro section would
be too uncommon to escape notice. If Conley had planted it there, he
would certainly have told about it.
Arnold, several times during his summation, emphatically stated
that he did not believe Lee committed the murder but that he did
believe Lee knew much more about it than he revealed. Arnpld was
strongly of the belief that Lee found the body much earlier than he said
he did and "knew more about the notes than he told."
Arnold implied that Lee had written the notes. And that was a
cogent and plausible deduction; for the purpose of the notes obviously
was not as the state contended, namely, that they were written to divert
suspicion from the real murderer to the night watchman they were
written to divert suspicion away from the night watchman.
The words of one of the notes, specifically, were these: "a long tall
negro black" committed the murder, " (he said) play night night witch
(night watch?) did it but that long tall black negro did it by his slef."
Lee was the night watchman. Lee was not long, tall and black, but
short, heavy and chocolate colored.
Of course, it must be remembered that not only did Lee testify that
he had never seen Conley and did not know him but that Cdnley had also
testified that he did not know Lee. And, if Conley did write the notes,
he meant to implicate Lee when he wrote "that negro hire doun here did
this" and that he merely guessed that Lee was "long, tall and black."
The two notes conflict, somewhat, and it may be that whoever wrote
them meant to direct suspicion toward an unidentifiable "long, tall,
Perhaps it is well that Arnold did not press his point about Lee's
knowing more than he told; for, although the conjecture seems ex-
tremely remote, it is within the bounds of possibility that Lee himself
was lurking in the shadows on the first floor that early noon when Mary
Phagan left Frank's office with her pay; that he strangled her and
pushed her down the hatchway or simply concealed her body behind
the boxes until the factory was clear and then removed it by means of the
elevator to the basement. And also it is within the bounds of remote
possibility that he was paid by Frank to cremate the body but got terri-
fied at the notion of being caught and therefore reported finding
Thus the shirt might have been Newt Lee's; it might have been
Conley's and planted there by Conley; it might have been Conley's and
planted there at the suggestion of Frank; it might have been Frank's
and planted thereby Frank; and it may even have been a shirt stained
with other than human blood (or even with paint or varnish — for,
although the shirt was described as a bloody one — no chemist was in-
troduced to testify that the stains were those of blood) and planted
there by the police when suspicion was strong against Lee. At all events,
the shirt was on exhibit at the trial but studiously ignored by both the
prosecution and the defense. Why? I don't know.
About the missing mesh bag: Its disappearance, along with its con-
tents, offers one motive for the murder — robbery. Many a murder has
been committed for robbery of less than $1.20. Conley may have mur-
dered Mary Phagan for that amount. That was the argument of the
defense. Conley described in avid detail how he allegedly saw Monteen
Stover come down the steps from Frank's office, after having received
her pay envelope, holding her money in her hand and counting it.
Monteen Stover did not see Conley. Nobody else did. There is strong
reason for believing that Conley was lying about having seen Monteen
Stover. He did not mention her name before the trial but his final state-
ment to the police it was (too readily, I think) assumed that he meant
Monteen when, he spoke of seeing a girl wearing a green dress at the
factory sometime after 12 noon. Monteen was wearing a brown raincoat.
It is not likely that he could have seen the color of the dress she wore.
Was Conley's description of Monteen actually a very vivid image he
had of Mary Phagan just before he throttled her for her meager little
wages? Mary wore a lavender dress. Or did some unknown robber thus
throttle Mary, some one who had followed her into the building and had
waited in the shadows behind the boxes on the first floor until she
came down the steps with her money? There was no one to stop such
an intruder. The front door was open. Holloway, the day watchman,
had gone. There was no one to guard the entrance, unless we except
Conley's word that he was there.
Conley told the police that Frank took Mary's mesh bag and first
laid it on his desk in his office, and then put it into the safe. That
would have been a wise precaution on Frank's part. If no mesh bag
or money belonging to Mary had been found, the motive of robbery would
be apparent. And- it is not probable that the superintendent of a factory
would kill one of his employes in order to rob her of $1.20.
We must remember that, on that Sunday morning when the body was
found, Frank opened the safe in the presence of several police witnesses
and no mesh bag was disclosed therein. At the time Frank did this he
did not know that Conley, nearly a month later would accuse him of the
crime and say that Prank had put Mary's mesh bag into his safe. Prank
opened the safe ostensibly in order to make sure that a girl named Mary
Phagan worked for him: he had just identified the body as that of a girl
whom he had paid off the day before, but (so he said) could not tell if
the body was that of Mary Phagan until he found her name on the pay
Conclusive evidence, do I hear you say, that Conley was lying about
Frank's having put the mesh bag into the safe? Not at all! If Frank had
been clever and foresighted (and had committed the murder) that was
just the right thing for him to do. He knew (let us say) that Conley
knew the bag had been placed in the safe and that if Conley broke down
and confessed his own complicity in the crime he would tell the police
where the bag was, thereby giving the police reason for not believing
that he (Conley) had killed the girl for her money. The police would
demand that Frank open the safe. Frank would anticipate them; he
would open the safe before they asked him to do so and, ostensibly, for
another purpose. They would see there was no bag there; they would
know that Frank would not kill the girl for her money but that a penni-
less Negro might; Conley, thereby, would not only appear to be lying
about the bag but also tightening the noose around his own neck.
If Frank wanted to be very adroit in fixing the guilt upon Conley
(and you must remember that it was Frank who suggested that Conley
be questioned; Conley had not been among those known to have been at
the factory that Saturday and so had not been thought of in connection
with the crime until Frank suggested him as a possibility) he could not
have better advised than to pick up the mesh bag and see to it that
Conley saw him put it into the safe. Having done this, if Frank had been
foresighted, he would have removed the bag after Conley was out of sight
and irretrievably disposed of it. One question which Frank asked the po-
lice is strangely relevant at this point. Indeed, it is entirely pointless
otherwise. Frank asked the police, "Did they find the girl's pay envelope
— the envelope containing her salary?" He did not ask if they had found
her mesh bag. He asked if they had found the envelope.
It is just possible that, after the murder, Frank was thorough and
brilliant in the way murderers often are in covering up their tracks
and in diverting suspicion toward others — and forgot one small precau-
tion. Thus it may have been that, having put the mesh bag in the safe,
in order that Conley might witness his doing it, and having taken the
mesh bag out of the safe and carried it home with him, he looked into
the bag and found that the money was there but the pay envelope was
gone! It was too late, then to try to recover and destroy that pay en-
velope. Perhaps Mary had thrown it on the floor of his office after
having extracted her pay! Maybe she had discarded the envelope in the
hallway, or, worse still, in the metal room!
Neither the police nor the public prosecutor attached any signify
cance to this apparently pointless question — one of the very first ques-
tions Frank asked the police! If Frank committed the murder and if
he found, too late, that the mesh bag did not contain the envelope, the
answer to that question was of paramount importance to Frank. If the
envelope had been found, his next question undoubtedly would have
been "Where?" Because, upon the answer would depend the entire struc-
ture of what he would tell the police. If the envelope had been found in
his office, that would not be so bad. It would merely cause him to add
another little detail: that he had seen her take the money out of the en-
velope, count it, throw the envelope on the floor, put the money in her
bag and leave. (He later told the police and stated to the jury that
he heard her footsteps as she was going dovm the stairs. His contention
was that Marv did not go into the metal room; that she was murdered
on the first floor or possibly in the basement, but not on the second
The police merely told Frank that the envelope had not been found.
It did not occur to them to ask him why he wanted to know. If he
strangled Mary Phagan, he must have been immensely relieved to know
that the envelope had not been found and further re-assured when they
did not notice his concern about it. Now he could keep his story intact;
he would not have to revise his strategy. He had just told the police that
he knew nobody by the name of Mary Phagan. They had said she had
been found dead in the basement of Ms factory. He had then asked
if she worked at the factory and they had answered that she did. Then
he had asked if they had found her pay envelope and they had answered
This question, important as the answer was to him at the moment,
was one to which the police should have attached great importance for
another reason besides the one I have stated. Why would Frank assume
that she had a pay envelope and especially why should he assume that
she had one and it may not have been found? There had been at least
two women who had gone in and out of the f aptory on the previous day
who had no reason for carrying their pay envelopes around with them,
for they had not been paid that day; one of them had been paid the day
before and tho other wasn't even on the pay roll. Even if Ptrank had
meant to imply that he could only identify Mary by her pay roll number
which would be stamped or written on the outside of her pay envelope,
there was no reason for him to assume that she had been paid on Satur-
day, much less for him to assume that it might have been missing when
the body was first found. Presumably for all he knew at the time, the
pay envelope and her pay were snugly intact in her purse. The police
had said nothing to him about the fact that the girl's purse had not
been found. ^
But, continuing with our temporary assumption that Frank was
guilty and that our hypothesis concerning the strategy of his alibi is
correct, the police's negative answer to his question about the pay en-
velope gave him the green light to go ahead. Everything was working
out according to plan. His denial that he knew any factory worker by
the name of Mary Phagan was only a ruse whereby he could innocently
show that the safe contained no mesh bag while ostensibly opening the
safe for another purpose— that of extracting the pay roll to look for
Mary Phagan's name on it. If Frank wrote the notes to throw suspicion
upon Conley, it all works into the hypothesis that Frank may have
strangled Mary after having caused her, accidentally, to fall against a
projecting piece of metal from a machine thus knocking her uncon-
scious, and that he worked out an elaborate scheme to show that
robbery was the motive and that the murder occurred on the first floor
or in the basement.
Arnold said that whoever wrote the notes committed the murder.
He said this in full knowledge of the fact that two semi-professional
handwriting experts, bank clerks whose work included that of passing
upon signatures to forfend against forgery — there were no professional
handwriting experts in Atlanta at the time — testified that the notes
were in Frank's handwriting but in an attempt to disguise it. Arnold
was counting on the fact that other "experts" had testified that the
handwriting was Conley's; his contention was that the writer of the
notes was Conley and, ipse facto, the murderer was Conley. As I shall
show later on, my most definite conviction about the case is that Conley
did not write the notes, either of his own accord or at Frank's dictation.
I don't know who wrote them; I have no conviction that Frank wrote
them; but I feel pretty certain that Conley did not write them. And, as
I shall show later on, Frank had very considerable reason for writing
the notes, whereas Conley had no reason at all.
A profounder statement of the matter than that of Arnold's about
the notes, however, would have been: the person who disposed of the
mesh bag was the one who committed the murder. Frank could have
written the notes and disposed of the mesh bag. But so could have Con-
ley (although I do not believe so) and so could have Lee or some one
else, some one who was never suspected of the murder.
There is, I contend after a deep study of the evidence, a very strong
possibility that the murder was committed by some one who was never
even suspected of it, much less apprehended.
In spite of the fact that the defense contended that Conley was the
murderer, not Frank, and that the prosecution contended that Conley
was an accessory after the fact of the murder, I have a strong inerad- .
icable feeling that Conley had nothing whatever to do with it, that he
was not at or even near the factory on the day the murder occurred but
drinking in various blind-pigs and at home drunk, as he first stated to
the police, that he was never at the factory on a Saturday. A dozen or
so witnesses, whose testimony I consider reliable, including witnesses
for the prosecution, testified they had never seen him at the factory on
a Saturday; the witnesses who said they had seen him there on pre-
vious Saturdays were of questionable veracity and their testimony was
pretty thoroughly impeached. I believe that the fantastic and variable
stories he told — after his first statement to the police — were made up
of snatches of stuff he had read in the newspapers or had been related
to him, stuff that had been suggested to him by the police and stuff
he had simply imagined.
1 have explained how it is perfectly possible that Frank might have
known Mary Phagan by sight and even known a lot about her, including
her first name (not a witness testified that he knew her last name; it was
only testified by several that he called her "Mary" in a familiar manner)
but the damaging thing to him is that he did not explain and even
demonstrate how it was understandable why he did not know her last
name. When the factory was running with full force there were over a
hundred girls working there. The chances are that he knew very few of
them by their full names or by any names at all. He could not go on
the stand and have all these factory workers parade before him and
attempt to show that he did not know the full names of many of them,
because the laws of Georgia prohibited him from going on the witness
stand in his own defense; but he could have given such a demonstra-
tion to the police before he was brought to trial. Or at the very least, he
could have brought it forcibly to his attorneys' attention how it
was possible that he should not know Mary's last name. We must put
it down as either extremely unfortunate that the defense did not make
capital of this very common experience, or that the defense had good
reasons for not doing so.
We can, I think, entirely disregard Conley's and the state's con-
tention that Frank planned a day ahead to seduce Mary and that part
of this plan was his refusal to give Helen Ferguson Mary's pay envelope
on Friday and that another part of his plan was to engage Conley on
Friday to come to the factory on Saturday and act as a lookout while
Frank was engaged with Mary. Even if it were not pretty well establish-
ed by other testimony that Helen Ferguson lied on the stand, or was
mistaken, and that Schif f, not Frank, paid off the employees on Friday,
and that Helen Ferguson said nothing to either Frank or Schiff about
Mary's pay envelope, the state's contention on this point, I contend, is
preposterous on the face of it.
Even if we allow that Frank refused Mary's pay envelope to Helen
and even if we allow that Frank hoped to be alone with Mary at some
time on Saturday, he could not possibly know what time Mary would
come for her pay or even that she would come for it at all on Saturday.
Even if it were true that he had refused to give Helen the envelope
and told her that "Mary will have to come for it herself," there was no
way of his finding out at what time or on what day she would comje.
She lived in the suburbs; she had no phone; she had worked only the first
two days out of the week and had not been to the factory meanwhile;
she might not come for her pay until Monday or later, for all Frank
knew. The chances were, indeed, that she would not call for her pay on
Saturday because that was a holiday.
Besides not having any way of knowing that Mary would come to
the factory on Saturday or at what time she would come, if she did,
Frank also would have no way of f orseeing who would T>e in his office
or on the floor when she arrived. She might have come in at the same
time that Mattie Smith came in, when there were at least two other
people in his office; she might have come in about the same time Emma
Clarke Freeman and Corinthia Hall arrived, when there were at least
five persons in Frank's office. Lastly, although it is plausible enough
to assume that Frank had designs on Mary's virtue (defense counsel
conceded, a bit too willingly and pointedly I think, that Frank's moral
character was not blameless) and that Frank conceived a lech for her
after she arrived at his office and, while no one else was around and as-
saulted her, it is highly iiriplausible, even ridiculous, to contend that he
planned it all this way on Friday.
It is highly implausible that Frank at any time employed Conley to
act as a lookout for him while he was engaged in immoral practices. He
had no need to do so; he could have locked the doors and otherwise very
easily have secured privacy against intrusion. And it would have been
very foolhardy of him thus to take an irresponsible and drunken Negro
roustabout into his confidence. In his cups Conley might easily have
blabbed about it; and for Frank to repose so much in Conley would have
been to deliver into Conley's hands very potent means of blackmail.
It is possible that, at one time or another, Conley may have come upon
evidence of Frank's immoral relationship with Daisy Hopkins or some
other girl had willingly submitted to Frank and that Frank tolerated
him on the premises, in spite of his frequent drunkenness, and kept him
in the factory's employment because of this knowledge. But that Frank,
or any other white man of Frank's position would have made Conley a
confederate in his immoral practices especially when there was no need
to do so, is something I cannot believe.
When I first began to study this case, I thought there was very con-
siderable basis for the hypothesis that Conley garroted Mary for her
money as she passed by him while he was hidden behind the boxes on
the first floor and that he threw her body into the hatchway and later
dragged the body across the basement floor intending to burn it, but
was prevented by fright or drunkenness or some other cause from carry-
ing out his intentions. That was the contention of the defense.
But closer study of the evidence and longer meditation upon it led
me into my ineradicable belief that Conley had nothing whatever to do
with the murder. It is a belief almost strong enough to be called a con-
viction. It still does not rule out the possibility that some one else, not
Conley, garroted Mary on the first floor and disposed of her body in the
manner assumed by the argument of the defense. But in this hypothesis,
I, just as the defense and the prosecution had done, originally overlooked
the very reliable testimony that the dust on the hatchway had not been
disturbed, that the hatchway was nailed down, and that it could not have
been reached that Saturday without disturbing a pile of boxes in front
A strong point for the defense was overlooked in this testimony
concerning the state of the hatchway. I can see a reason for the de-
fense's overlooking it. That strong point would have fitted into a hy-
pothesis that the murder was committed on the first floor but that the
body was not thrown down the hatchway but thrown down the elevator
shaft! The door of the elevator was unlocked. That was testified to by
Holloway; he said he had forgotten to lock it Saturday morning when he
left. Moreover, it was established that the victim's parasol was found at
the bottom of the elevator shaft; it was not crushed by the elevajtor.
This point about the parasol's not being crushed was eagerly seized
by the defense as tending to negate Conley's contention that the body
was taken down in the elevator. If the elevator had descended to its
normal position in the basement, the parasol would have been crushed.
And the defense's hypothesis and contention was that the body had been
thrown down the hatchway and dragged from its position in front of the
hatchway to the spot where it was found, in front of the furnace.
But the reason why the defense would not dwell upon the possi-
bility that the body was hurled down the elevator shaft is two fold:
(1) the body might have been hurled down the shaft from the second
floor as well as from the first, and (2) Prank had a key to the elevator
switch, by which the elevator might have been run up far enough to
permit the body to be hurled down, if the elevator were not already
above this point, without arousing the notice of Denham and White of
the operation of the elevator.
So Frank might have hurled the body and the girl's effects down
the elevator shaft from the second floor. And, after he was sure that the
whole factory was cleared of other occupants, he might have run the
elevator down just far enough in the basement to extract the body and
all of the effects except the parasol (which he forgot) and dragged
the body toward the furnace. Or, he might have walked down to the
basement, pulled the body out of the shaft, intending to burn it, and
removed the other effects but forgot about the parasol.
Here was a plausible hypothesis for the prosecution, just as it was a
plausible hypothesis for the defense, namely that the body was hurled
down the elevator shaft from the first floor, and, in both cases.it con-
formed with the testimony that the hatchway was nailed down, that the
dust on top of it was not disturbed and that the hatchway was not
accessible without removing the boxes.
But, there you are, it was the contention of both the defense and
the prosecution that Conley was at the factory at the time Mary Phagan
was murdered but their contentions as to what he did there were dia-
metrically opposite. Conley's fantastic story was, in a way, necessary to
the hypothesis of the defense as well as to the hypothesis of the prosecu-
One can rule out Conley's testimony altogether and assume he was
not near the factory on the day of the crime and yet cling to two per-
fectly plausible hypotheses (1) that Prank committed the crime unaided,
and (2) the crime was committed by Lee or by some unsuspected person
and Prank knew nothing about it.
To me the notes alleged to have been found in the basement the
morning the body was discovered do not have the ring of authenticity,
either as notes written by Mary Phagan or as composed by Conley, or as
dictated to him by Frank. The illiteracy of them is not consistent.
Words like "mamma," "write," "watch" and "himself" are misspelled,
but the other words are spelled correctly. "Hired" is written "hire,"
whereas "laid" (if that is the word) is correctly used and spelled. "Did"
appears where the incorrect "done" would appear more likely. The use
of the word "negro" is an anomaly; lower-class Negroes in the South do
not use it, they use the word "niggah," especially in designating a Negro
they wish to condemn and in spelling the word would use some approxi-
mation of the way they pronounce it.
Who, then, wrote the notes? Whoever wrote them, I think, achieved
a very clumsy attempt to fake illiteracy. It is strange that the prosecu-
tion never noticed the peculiarities about the notes. Perhaps it did
notice them but did not want to damage the fabric of Conley's story
of what happened. Yet, though the state tended to disregard the notes,
I think it could have attached significance to them.
Why? Because if the body was to be burned by Conley, according to
plan, as Conley testified, there was no point in writing the notes. If the
corpus delicti was to be destroyed by cremation in the furnace there was
no reason for leaving any evidence of any -kind, including a phony de-
scription of the slayer. But, if Conley had failed to return after lunch, as
he had promised to do, there was reason for Prank to leave such notes.
Time was pressing. Prank, according to his own story to the police
was-^so far as he knew— alone in the building from the time Lee came
at about four o'clock to ask permission to take a nap in the basement
until Lee reappeared just before six to begin his night's work.
Frank, therefore, would have had a motive for forging the notes and
leaving them on the dead girl's body. If prank had such a revulsion
against cremating the body himself that he would engage Conley to do
it, he (Frank) would have reason to worry about the discovery of the
body. Newt Lee was returning to work at 6.
Frank himself was due home for dinner at 6:30 or 7. Conley had not
shown up. But Conley was an accomplice in the crime — that is, assum-
ing that the state's case was true — and therefore it would be expedient
for Frank to try to fix the crime upon an unidentified "tall, black
negro," in the event that the body was discovered by Newt Lee during
the night — before cremation could be effected the next day, a Sunday,
when the factory was closed and empty.
Frank, a graduate of Cornell University, in writing such a note,
could also have reasoned, in his panic, that the note (or notes) should
appear to have been written by Mary Phagan to her mother after a strug-
gle with an attacker in the basement in which the attacker had left her
for dead. Mary had only a few months of public school education. There-
fore any notes assumed to have been written by her should seem illiter-
ate. But, as it has been proved time and again, it is very difficult for an
educated person to write in an authentically illiterate manner. Education
I will give you an illustration of what I mean. The late Ring Lardner
was one of the very few and perhaps the only one except Mark Twain,
of America's noted writers who spelled and used words as a badly edu-
cated person spells and uses them. Many other writers, from Artemus
Ward on down to Will Rogers have used erratic spelling as a kind of
humor, spelling according to sound rather than according to the dic-
But, as Lardner once pointed out, Rogers, Streeter and other edu-
cated men who try to write like illiterates are prone to a common mis-
take: they mispell just the words that a true illiterate would trouble
to spell correctly, and they misspell the words they think they know how
to spell. Thus Lardner's Busher and other semi-literate characters would
never spell Philadelphia, "Fillydalfy," as Artemust Ward did. He would
look the word up on hotel stationery, a time-table or some easy reference
source and would painfully, but correctly, spell it out as it should be
spelled. But the same Busher, thinking he knew the spelling of such a
common word as "asked," would spell it "ast," and thinking he knew
such a familiar expression as "the World Series," would spell it "worlds
serious." Lardner had hundreds of letters from ball-players to prove his
The above is not to assert, or even strongly to imply, that Ifrank
wrote the notes found on Mary Phagan's body. They may just possibly
have been written by some over-imaginative policeman or detective
anxious to make a case against a "tall, black negro," or they might just
possibly have been hastily scribbled by some too exuberant police report-
er, who, in the general excitement of that early Sunday morning in the
basement of the factory handed them to the police as something he
had found, in order to "make a good story." But, I repeat, I don't believe
Conley wrote the notes or that he ever saw them before they were shown
to him. I don't believe that Conley knew what the purpose of them was
supposed to be.
I believe the police, the corner's jury and the grand jury honestly
believed in Frank's guilt and that they arrived at this belief from the
testimony of Newt Lee, Monteen Stover, Frank's signed statement, and
the affidavits of various persons, without giving any particular weight to
Conley's testimony. For it must be remembered that Conley's story of
his complicity in the crime did not come before the corner's jury or the
grand jury at all. It was not concocted by Conley until after Frank was
indicted. My theory is police prompted Conley in his final story and that
they subjected him to the third degree until he told a.story that "fit"
other evidence they had dug up. But I believe that Conley's fourth and
final signed statement, before the trial, was accepted by the police only
because, in general, it tended to bear out a hypothesis they had already
My contention is that the hypothesis was faulty; that the procedures
on both sides were honest enough but not marked by any particular in-
telligence and probably handicapped by the curious psychological phe-
nomenon I have alluded to in the beginning of this analysis. Therefore
I agree with Arnold that this case is "a deep, dark mystery."
On the evidence, Frank might have killed Mary Phagan but the
evidence is not strong enough to preclude reasonable doubt. i
. Therefore, I say that, unless there were certain other indications of
guilt derived from the behavior of witnesses and of the accused, which
do not appear in the printed record, the jury was unjustified in finding
the defendant guilty, as charged, and that, upon the evidence presented
even in the digest of the proceedings, the Supreme Court of the State
of Georgia should have set aside the verdict and granted a new trial.
I think that Judge Roan and the other courts of appeal, including the
United States Supreme Court were right in denying an appeal on the
grounds of mistrial. The defense's evidence does not support its con-
tention of trial error. Judge Roan and these other courts of appeal were
called upon to decide only concerning the charges of trial error. But
the Georgia Supreme Court judges were called upon to review a digest
of the whole procedure of the trial, including that of testimony and the
Governor Slaton therefore did right, in my opinion, in commuting
the sentence to life imprisonment. He may have counted upon a fur-
ther commutation of sentence by a later Governor or a complete pardon,
when the hysteria aroused over the case had died down.
The lynching of Leo Frank was a crime against law and order,
decency and humanity. No man who values his own freedom or has
care for the legal guarantees of his rights can condone such an action or
view it in any other way except extreme horror.
Dr. A. F. Nlemoeller, of St. Louis, Mo., Is probably the country's most
brilliant, scholarly, scientific writer un sexological themes. Here are the
titles he has done for the Haldeman- Julius Publications:
A. F. NIEMOELLER
Sex and Smell. A study of sexual os-
phresiology, or the part played by odors
In sexual attraction and stimulation. 35c.
Business Side of the World's Oldest
Business. Organization, management,
and earnings of prostitution. 35c.
Sexual Slavery in America. A history
of illicit sex relations (including pros-
titution and white slavery) in Colonial
times, in the Slave South, and in Modern
times. A 60,000-word book. $1.50.
Fleshpots of Antiquity. The lives and
loves of ancient courtesans. By Henry
Frichet. Translated from French, with
foreword, introductory essays and notes
by A. F. Niemoeller. $1.50.
SEX, ABNORMAL ASPECTS OF
Essays of an Erotologist. Some obser-
vations on little discussed aspects of sex.
Bestiality in Ancient and Modern
Times. A study of the sexual relations
of man and animals in all times and
Bestiality and the Law. A resume of
the law and punishments for bestiality
with typical cases from 15th centurv to
the present. 35c.
Artificial Impregnation. A study of the
history, methods and ethics of concep-
tion without cohabitation. 35c.
De Sade on Virtue and Vice. Selec-
tions from the writings of the Marquis
De Sade (after whom the practice of
Sadism was named). Illustrating his
views on morality and sex. Translated by
A. F. Niemoeller. 35c.
Bundling — Its Origin, Progress and
Decline in America. Henry Reed Stiles.
A rare study in sexual morals. Introduc-
tion by Niemoeller. 75c.
The Secret Laws of Sex. El Etab, or
the Khodja Omer Haleby — An Arabic
scholar's interpretation of Koranic law
as it pertains to sexual relations. Trans,
and condensed by A. F. Niemoeller. 35c.
Aphrodisiacs and Ant i- Aphrodisiacs.
What science has learned about the prob-
lem of increasing the average man's ca-
pacity for a fuller sex life. 60c.
MARRIAGE AND COURTSHIP
Feminine Hygiene in Marriage. $1.50
The Funny Side of Divorce. Various
ridiculous reasons and complaints that
have been presented as grounds. 35c
Chastity Safeguards Mechanical
means of preventing sexual indulgence,
in both men and women, employed in
different times & countries. Niemoel-
Bought singly, the above 15 titles would cost $9.35, but if you will or-
der the entire set of Niemoeller books, we will let you enjoy the bargain
price of only $6.25, a saving of more than $3. Send $6.25 and ask for
A. P. NIEMOELLER'S COMPLETE LIST.
HALDEMAN-JULIUS PUBLICATIONS, GIRARD, KANSAS
H £>r. Cauldweli, born oH
■June 17, 1897, at Cleveland,
Ohio, Is doing important,
useful educational writing
Jon Sexology and related
■subjects. Below we list me
booklets he has done for us
[so far. Check them care-
fully and you will be sur-
prised how many of them
I you will want to read.
Dr. Cauldwell's father —
■ deceased since 1917 — was
Gilbert Cauldweli, M. D.,
surgeon and anatomist. D.
O. Cauldweli was schooled
at Cleveland— at Purdue—
and entered medical stud-
ies at the Chicago College
of Medicine and Surgery.
Later this school, together
with Bennett Medical Col-
lege, was merged with Loy-
ola U. (Chicago), where the
ecclesiastical authorities in
control failed to appreciate
the advanced students of
the merger, most of whom
drifted away. A Freethink-
I er, Cauldweli was forever in
bad odor with the pious
professors. He then took
his transcript and was wel-
comed at the Universidad
Nacional de Mexico, having
fortunately, in earlier days, gained a command of Spanish. There he
studied, practiced and took his degrees in medicine and science.
After several years of private (general) practice, Dr. Cauldweli
became an Associate Medical Officer of the War Department and served
also as an army contract surgeon. Later he served in war industries, as
follows: Surgeon, Norfolk Dam Project; Ellis and Mountain Home,
Arkansas; Medical Director, Seneca (111.) Shipyard. Then he returned
to the War Department as neuro-psychiatrist, Induction Service. Then
he became medical examiner at Ingails, Pascagoula, Shipyard.
Dr. Cauldweli gave up his practice in 1945 to devote himself to writ-
ing, which he tackled with the utmost earnestness. From eight to 14
hours daily are devoted to reading, writing and research. Two or three
hours each day are given to outdoor activity around his "Farm-Haven,"
Here are the booklets (each 15,000 words in length, page size 5y 2 x 8y a
Inches) that Dr. Cauldweli has written for Haldeman- Julius:
DAVID OLIVER CAULDWELI
Author of Growing List of H-J Books
PSYCHOANALYSIS & PSYCHIATRY
What Makes the Neurotic Personal-
ity Behave that Way? What psychiatry
has learned about your reactions to the
anxieties, conflicts and strain of modern
Schizophrenia and Mental Danger
Signals. What to do about schizophrenic
tendencies — a study of behavior and
mental disturbances. 35c.
Studies in Psychosexuality. Revealing,
strange and unusual sex complexes, and
remedial means- 35c
So You're a Neurotic! Treatment pos-
sibilities and treatment technique for
men, women and children who feel too
keenly the emotional strains of living. 35c
Sexual Fear Fixation— What To Do
About It. How to banish personal fears
and thus overcome their damaging
effects. Cauldweli. 35c.
How You Can Become a Practical
Psychoanalyst. Workable applications of
Freud, Jung, Stekel and others made
easy. Principles of Psychoanalysis you
can use in business and everyday rela-
tions with other persons. Sftc
Prostate Gland Diseases & Their
Treatment. Cauldwell. 35c
What Women Should Know About the
Menopause. The prevention of suffer-
ing through an understanding of the
hygiene of life's natural changes. Cauld-
What to Know and Do About the Male
Climacteric. Advice which can help to
keep men from going off the deep end,
including a generous question and
answer section. 35c.
The Treatment of Impotence in Man
and Woman. Kinds of impotence in both
sexes; treatment of frigidity in woman;
the psychology of impotence. 35c.
Sterility in Men and Women. A study
of causes and treatment possibilities for
those who are denied parenthood. 35c.
The latest So-Called Miracle Cures for
Syphilis. The facts about penicillin. His-
tory and facts about syphilis, its com-
plications and treatment. 35c
The Latest So-Called Miracle Cures for
Gonorrhea. Are the Sulfas and Penicil-
lin Miracle Drugs? Is Prophylaxis Ef-
Is Sexual Sterilization Easy? A study
of various facts about sterilization. In-
cluding its legal status. 35c
Effects of Castration on Men and
Women. Accidental, voluntary and in-
voluntary castration. Eunuchism and
history — medical treatment and aspects.
Sex and Psycho-Somatology. A study
of the various aspects of the relations of
Psycho-Somatic medicine to sexuality
and sexual disorders, including Import-
ant endocrine data. 35c
Hypersexuality— Is Anyone Oversexed?
Viewpoints of physiologists, psychia-
trists, and sociologists on precocious
sexuality and nymphomania. 35c
What Can A Sick Person Believe? A
study of what is valid in the new medi-
cal magic and a summary of Information
for both the sick and the well. 35c
Problem of Unwed Fathers. With side-
lights on unmarried mothers and ille-
gitimate children. Cauldwell. 35c
-When Are Girls Promiscuous? Love's
physiology, for the virgin and her sister,
with questions & answers. Cauldwell. 35c
A Modern Analysis of Biblical Sex
Bought singly, the above 35 titles, at 35c, would cost $12.25, but if
you will order the entire set of Cauldwell books, we will let you enjoy
the bargain price of only $9.10, a saving of more than $3. Send $9.10
and ask for DR. CAULDWELL'S 35 Books. They will be shipped im-
mediately prepaid. Mail orders to:
HAIBEWIAN-JULIUS PUBLICATIONS, GIRARD, KANSAS
So Yon Married an Alcoholics Facts
About Alcohol, alcoholics, Neurosis and
Practical Psychiatry for Everyone. How
to be your own mind doctor and solve
mental problems for yourself and others.
Easy Lessons in Practical 'Psychoanal-
yst. A workable guide for the use of
amateurs who want to understand them-
selves and others better and thereby be
MARRIAGE AND COURTSHIP
Psychology of Harmonious Marriage.
Guide to husbands, wives, sweethearts
and ioyers. Cauldwell. 35c.
Husbands and Wives Can Be Satis-
factory Lovers. A guide to the esthetics
of intimacy, with hints on how sex can
be made beautiful. 35c
Ideas Which Wreck Marriage Before
the Honeymoon Begins. The groom's di-
lemma — is his bride a virgin? The
bride's perplexity — will he know? A
book about the hymen, and virginity in
both sexes. 35c.
Doubting Fathers — Psychological and
Biological Paternity. Can science prove
who is whose father? 35c.
Semen for Sale. All about artificial
insemination — how it's done. Test-tube
babies — latest facts. Husbands for hire.
Fathers by proxy. 35c
SEX, ABNORMAL ASPECTS OF
Why Sex Offenders Act That Way.
Psychiatry shows that sex delinquents
are very sick people. Cauldwell. 35c
The Truth About Homosexuality in
Man and Woman. Facts cleanly present-
ed to help improve individual and socio-
logical concepts. 35c
Perverted Haters of Sex. There are
persons who hate sex walking among us
every day — A candid study of a strange
Sex Crimes Among Juveniles. A study
of various delinquencies. 35c
Why Males Wear Female Attire.
Strange stories, weird confessions, his-
torical data, and scientific explanations
of transvestism. 35c
What Is a Hermaphrodite? A study of
persons of either sex whose genital or-
gans, mental integration and chemical
(hormonal) characteristics embrace the
characters or characteristics of both